In the October 1943 term, there had been a similar case from the Eighth Circuit Court of Appeals, Dunne v. United States (138 F 2d 137), in which we denied certiorari. The case involved two conspiracies--advocacy of the overthrow of the government by violence, and advocacy of disloyalty and insubordination in the armed services. No overt acts were charged apart from advocacy. Yet the case, emotionally speaking, was less appealing than Dennis because Dennis was in the classic framework of teaching.
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The arrival of Earl Warren made part of the difference. Moreover, I think the notorious and high-handed way in which the loyalty security program was administered was making itself felt on the judicial conscience. In any event, the Court construed executive orders and regulations concerning the discharge of "subversives" from government employment quite strictly, to give the accused employees a full measure of procedural due process of law. [See "The Case of Emily Geller" for an example of a loyalty security hearing.]
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The Court also did a shade better when it came to loyalty oaths. The vice of many loyalty oaths is that they look to the past, not to present fitness or future promises of behavior. They punish a person for acts which may not have been unlawful when committed. They have all the essential earmarks of bills of attainder historically used to inflict punishment on unpopular minorities. A person seeking a public post can of course be tested for present loyalty and for his disposition toward law and order. But disqualifying him because of past actions or thoughts that are not necessarily relevant to present fitness is punishment for acts which may have been innocent when done. Certainly a person put on the blacklist for public employment suffers punishment of an acute and measurable amount. (For more on blacklisting, specifically in Hollywood, click here.)