SUPREME COURT: When a Risk Is Not a Risk

After reports came in that he associated with Communists and attended the meetings of a subversive organization called the Nature Friends of America, gaunt, balding Kendrick M. Cole was unceremoniously suspended from his $4,950-a-year job as a U.S. food and drug inspector in New York. At first Cole refused to reply to the charges, labeling them as "an invasion of my private rights." He quickly changed his mind, asked for an administrative hearing (which was denied), took his case to the courts, and went to work as a tree surgeon. That was three years ago. Last week, in a 6-to-3 decision that was certain to involve it in even more controversy (see box), the U.S. Supreme Court ruled in Cole's favor, ordered him reinstated with back pay (estimated at nearly $13,000). In so ruling, the court held that Government employees in "nonsensitive" jobs may not be dismissed as security risks under the basic security risk act of 1950.

"It is difficult," said Justice John Marshall Harlan for the majority, "to justify summary suspensions and unreviewable dismissals on loyalty grounds of employes who are not in 'sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the nation's security." Rather, he explained, if the charge is disloyalty in a nonsensitive position, there are orderly procedures for dismissal other than the 1950 act. This reasoning was concurred in by Chief Justice Warren and Justices Douglas, Black, Frankfurter and Burton. It was applauded by such advocates as the American Civil Liberties Union and Washington's ex-Senator Harry Cain, who, as a member of the Subversive Activities Control Board, has become a latter-day civil libertarian. Cain called the Cole case decision "the best American good sense I have heard in a long time."

But the decision came in for stinging criticism from within the ranks of the Supreme Court itself. Justice Tom Clark, joined by Justices Stanley Reed and Sherman Minton in dissent, wrote: "We believe the court's order has stricken down the most effective weapon against subversive activity available to the Government."

Within the week, the Administration moved to follow the court's order. Seventeen Government workers, all of whom had been labeled security risks, were returned to the public payroll.

In its last week, the court also: ¶Ruled, 5 to 4, that the Government could deport an alien on the basis of evidence from secret informants, even though the alien's record was otherwise clear.

Chief Justice Warren, with Justices Douglas, Black and Frankfurter, dissented resoundingly. Wrote Black: "The core of our constitutional system is that individual liberty must never be taken away by shortcuts, that fair trials in independent courts must never be dispensed with. That system is in grave danger. This case emphasizes that fact."