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er case Which has causedysn- cern, especially here in Califamia, is the Koenigsberg case, in which your own Supreme Court was reversed on Earl ‘Warren Chief Justice U. 5S. Supreme Court 4's matter of admission to the bar. That “i §6decision troubles me, too. Neverthe- less, as my colleague Professor Archi- bald Cox pointed out in a speech he gave in Los Angeles at the time of the American Bar Association Conven- - satisfactory. Yet I have cofifigefité that experien that the conclusion reached is not only one that we can live with but is one that we will come to accept. The sub- sequent action of the Court in a case from Oregon — In re Patterson, 356 U.S. 947 (1958) — seems to confirm this view, Nelson Case Finally, I would like to make refer- ence to another decision as to which it seems to me that there has been great misunderstanding, based very largely on purely emotional grounds. This is the decision in Pennsylvania v. Nelson, 350 U. S. 497 (1956), where the Court held that the adop- tion by Congress of the Smith Act had superseded state statutes in the field of subversion. Actually, there is real- ly nothing novel or startling in this decision. The same general conclu- sion has been reached before in liter- ally hundreds of cases. Reference is rarely made to the point actually de- cided in the Nelson case, which was that the Commonwealth of Pennsyl- !vania could not maintain a prosecu- government, after Congress had pro- vided for such prosecutions in the Smith Act, Why should a State nrose- La cute for a conspiracy against the tion there last August, this decision] United States, especially when Con- should not be read too broadly. One] gress has made provision for_prose- of the first things that a law student} cution learns in Law School is that an opin- ion must be taken in the light of the facts before the Court, and that its significance depends on the actual de- cision on those facts, and on nothing more, As Professor Cox observed in his speech, the Konigsberg case shows that the Supreme Court “is concerned that a man should not be denied ad- in such cases by Federal authorities and in the Federal Courts? Such conspiracies have in- terstate ramifications, and are almost surely in more experienced and better informed hands when they‘ are han- dled by Federal authorities. More- avar in tha Malanw anen tha Gunrama WWOh, ALE UES LP ORO Vek, VEEL KI pe Wedd Court affirmed a decision of the Penn- sylvania Supreme Court. This was no mission to the bar because of radical] novel doctrine. political or economic views,” and that There have been moves in Congress tion for subverson against the Federal. he should not be put to a special bur-] to abolish the whole doctrine that den of proof because cZ such views.| state laws are superseded when Con- There is a clear distinction, which I] gress has passed a valid statute in am sure the Court would recognize,| the area. This is really throwing out ; between radical political and economic| the baby with the bath. The passage. views, on the one hand, and true sub-| of such a statute would upset the version, on the other. The ranks of | federai-state balance in many areas, ' honored lawyers, throughout the cen-! and would go far to Balkanize the turies, in this country and elsewhere,’ United States. More than two years have included people who challenged have passed since the Nelson case was the status quo, as a matter of princi-' decided, and there is no evidence that ple or on behalf of a client. Mvreover, r as Professor Cox likewise pointed out, of any sort. If State officers have in- the Court is concerned here, as in , formation of subversion against the other fields of the law, “lest what ap- ] United States, there is no reason to pear to be findings of fact should mask [think that it will not get full attention I know of that it has done any harm last August... . ) . afer le Literate Critics will sho serene S ~However, it should surely Brrecog nized that not all criticisms of th Supreme Court in recent years cal be dismissed on the ground that the: are based primarily on emotiona grounds or on misunderstanding There are a number of persons o eminence and understanding who ma: be called, in the words of Professo Philip B. Kurland of the University of Chicago Law School, the “Literate Critics” of the Supreme Court. First and foremost among these, « course, is Fudge Learned Hand.. . (Judge Learned Hands says] that,tl Supreme Court should not undertal to act as a third house of the legisl: ture, and there can be no disagre ment with that. And insofar as | says that our legislative bodies then selves have a great responsibility | the field of civil liberties which the should exercise more regularly ar carefully, one may likewise agree. Bi a legislative body is not a good pla for the protection of individual righ — strange as that observation mz seem, There is ordinarily no concre specific case before the legislati: ‘|body. It legislates in general term on a broad issue, and rightly enoug: ;with the general public interest pri marily in view. However, in th courts, there is an individual clai ing protection, and presenting t nerete facts of an actual case. Mo! er, the action against which the i ividual is seeking protection may at of an executive or administrati officer who is seeking to apply t ldw in a way that the legislatui uld hardly have foreseen. lve th the greatest of responsibility ¢ the part of the legislature, there ample scope for the proper functio! ing of the courts in this field. But th courts should here, as everywhe! else, be restrained and careful. Fi his emphasis on this important poin we can-be grateful to Judge Han [A] document to which careful] at. i yasnertful attention must be given | Le pee the Declaration signed by the Chie Justices of the Supreme Courts ~ thirty-six of the States at their anr ‘al Conference held in Los Ange My best judgme is that this statement will live in h tory as a symptom of the times a not because of its own power as persuasixe discussion of constitutir the application of a rule of law” which |from the F.B.I. and other agencies of 4 law. is inconsistent with proper freedom in seeking admission to the bar. As L have indicated, I do not think that the Konigsberg opinions the Federal Government. Why should * it be the responsibility of the States to prosecute for offences against the United-feetes anyway?