Recusant Witnesses and the McCarthyite Congressional Investigations

This paper charts the Warren Court’s handling of those convicted for contempt of Congress at the urging of the House Un-American Activities Committee and the Senate Subcommittee on Internal Security. An examination of the arguments made in the Court’s various opinions—and by whom—reveals that the outcomes in these cases cannot be explained solely by the changing membership of the Court. Even when there were the votes to support the vigorous denunciations of the McCarthyite congressional investigations that found expression in dissents inspired by Watkins v. United States, the Warren Court took a more measured tone. That more measured tone was an attempt to avoid a repeat of the fractured Court amidst a public backlash that Warren had provoked with Watkins and marked a return to the Court’s pre-Watkins use of formalism to bring about the just result.