A Delicate Balance
The problem of balancing the State’s interest in the loyalty of those
in its service with the traditional safeguards of individual rights is a
Tom Clark, Slochower v. Board of Higher Education (1956)
EACH SUPREME COURT SESSION deals with cases that reflect the issues of that particular time, and during the 1950s, when the Cold War dominated the country’s attention, the justices faced a virtual flood of cases pitting national security against individual freedoms. In 1957, for example, 41 percent of the decisions handed down dealt with that conflict.1 Tom Clark, who as a former attorney general was responsible for controversial policies that strove to control subversion during the early years of the Cold War, frequently, with some important exceptions, came down on the side of the government in these decisions.
Many of the appeals heard by the Supreme Court during the 1950s involved prosecutions based primarily on the Smith Act (officially, the Alien Registration Act of 1940), which made it a criminal offense “to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.” One major issue that emanated from these appeals concerned the constitutionality of loyalty oaths. During the 1951–1952 term, the Court dealt with several cases challenging loyalty oaths required by states, and in most cases it upheld the states’ positions. In one example, Gerende v. Election Board, the justices upheld a Maryland law requiring candidates for office to first take an oath that they were not attempting to overthrow the gov-