The Supreme Court: Cool on Contempt

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .

—U.S. Constitution

Traditionally outside this command is the power of federal judges to enforce their orders by trying errants for criminal contempt without a jury. Last week the Supreme Court again followed the tradition by denying jury trials to Mississippi's ex-Governor Ross R. Barnett and his successor, Paul B. Johnson Jr., both charged with what Justice Arthur Goldberg called the "extraordinarily serious" crime of obstructing federal orders to desegregate the riot-torn University of Mississippi in 1962.

Barnett and Johnson now face trial before the Court of Appeals in New Orleans, which, having split 4 to 4 on the question, had asked the high court to decide whether the case should be tried with or without a jury. The Mississippians had hoped for the former, counting on sympathetic Southern jurors. But how they fare now is almost unimportant compared with the ramifications of last week's decision. For only by the narrowest margin of 5 to 4 did the Supreme Court uphold summary criminal-contempt power. And in so doing, it seemed to grant a key concession that dissenting Justice Hugo Black hailed as "the beginning of the end" for nonjury contempt trials.

Clayton Curb. In 1789 the First Congress, following common law practice, specifically granted federal courts the power "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same." In at least 50 cases, the Supreme Court has upheld this power. Only six years ago, the court held a full review of the issue in Green v. U.S., concluding that "a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establishes beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right."

However, there are curbs on this power. If Barnett and Johnson were charged with contempt of a federal district court, they could well argue for a jury trial under certain provisions of the 1914 Clayton Act. Such a court did in fact order Negro Student James Meredith enrolled at Ole Miss. But Justice Tom Clark, speaking for the majority, put Barnett and Johnson squarely in the hands of the Court of Appeals, which had also enjoined them from interfering. Said Clark: "It would be anomalous for a Court of Appeals to have the power to punish contempt of its own orders without a jury but to be rendered impotent to do so when the offensive behavior happens to be in contempt of a district court as well."

Pointed Dictum. The argument then entered virgin territory: the constitutional guarantee of jury trial has long been construed to exclude "petty offenses"—meaning those carrying top penalties of six months in jail and a $500 fine. Criminal contempt is no petty offense. Until recently, however, it was almost never punished by more than petty-level penalties. Now the penalties have grown ever stiffer. For example, the Supreme Court in 1958 upheld three-year sentences for Communists Gilbert Green and Harry Winston, who had jumped bail. In the light of such penalties, has criminal contempt now become triable by jury?