Self-Reversal

Times change, and so does the Supreme Court--sometimes quite rapidly. In 1952, during Senator Joseph McCarthy's heyday, the court confirmed the validity of New York State's Feinberg Law, barring subversives from the public-school system. The matter seemed settled then and there. Last week the court ruled again on the Feinberg Law. This time it reversed itself, ruling by a vote of 5 to 4 that the law is now unconstitutional. Such short-term reversal is not unprecedented, but it does require agile rethinking on the court's part. The 1952 case, decided by a 6-3 majority, did not speak to the 1967 issue raised by three New York State University faculty members who deliberately refused to sign a loyalty oath in order to test the law. Another university employee also refused the oath. Their points were that "pertinent constitutional doctrines have since rejected the premises upon which" the earlier conclusion rested and that the law is unconstitutionally vague. Pursuing the first point for the majority, Justice William Brennan noted that, though New York recently abolished the oath requirement of the Feinberg Law, it still bars from public-school employment members of any organization that advocates the violent overthrow of the Government. Even if the employee does not share the advocacy, he must still be fired under Feinberg, said Brennan, and that is "guilt by association."

Regulatory Maze. Moreover, the law would also remove from school employ anyone guilty of "treasonable or seditious" utterances or acts. Here, said Justice Brennan, "the difficulty centers upon the meaning of 'seditious.' " Constructing a reductio ad absurdum, he traced how the law might conceivably include even a teacher who publicly displayed the Communist Manifesto by merely carrying a copy of it on the street. "It is no answer," added Brennan, "to say that the statute would not be applied in such a case." The law is plagued by such vagueness, he concluded, and constitutes a "regulatory maze" in which a teacher would rightly be uncertain of just what he could and could not do. "There can be no doubt of the legitimacy of New York's interest in protecting its educational system from subversion," but its law has not been defined narrowly enough and therefore infringes too heavily on the First Amendment guarantee of free speech.

The dissent was unusually bitter. Condemning the "blunderbuss fashion" in which the majority acted, Justice Tom Clark blazed that "no court has ever reached out so far to destroy so much with so little." The argument of vagueness is flimsy, he continued, since the language of Feinberg "obviously springs from" such federal statutes as the Smith Act, which the court has previously upheld. He added that the decision's wording is so broad that henceforth no state will feel safe in making loyalty requirements. "The majority has swept away one of our most precious rights-- the right of self-preservation," he concluded. The heated argument even continued orally when the Justices delivered their opinions. "Of course our decision today does no such thing," rebutted Brennan, adding that the minority's dissent had indulged "in richly colored and impassioned hyperbole." Replied Clark tartly: "It must have hurt."

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