Scales v. United States

In the 1960s, the federal courts were still prosecuting members of the Communist Party. In Scales, the Supreme Court distinguished between Scales's "active" membership in the party and merely belonging.

In the wake of World War II, the United States became concerned about Soviet domination of Central and Eastern Europe. Policy makers in Washington, D.C. were determined to contain the growth of Soviet imperialism, both abroad and at home. The American Communist party in fact posed little threat to the federal government, but Congress passed many laws aimed at removing party members not just from government, but from American society at large. The anti-communist movement reached fever pitch when the political opportunist, Senator Joseph McCarthy, and the notorious House Committee on Un-American Activities began holding public hearings in an effort to root out domestic subversivism.

The Smith Act, a product of pre-war anxiety, became part of the Cold War on communism. Adopted in 1940 before the U.S. had actually entered World War II, the legislation--properly called Title I of the Alien Registration Act--was decidedly xenophobic, requiring the fingerprinting of all aliens in the country. Its true aim, however, was to check subversive activity. It imposed penalties on anyone attempting to disrupt the morale of the armed forces or advocating violent overthrow of the government. It also outlawed membership in any organization dedicated to this goal.

The Smith Act was rarely invoked during the war. After World War II ended, though, it saw active use as a tool for prosecuting domestic communists. After the Supreme Court upheld the convictions of 12 Communist Party Central Committee members under the act in Dennis v. United States (1951), the act helped to secure indictments of state party leaders all over the country. After the Korean War ended in 1953 and Senator McCarthy was publicly discredited in 1954, the communist witch hunt abated somewhat. The Supreme Court led by Chief Justice Warren began to back away from the government prosecution of communists. On what became known as "Red Monday," 17 June 1957, the Court ruled against the government in several cases involving alleged subversiveness, including a number of California communist leaders who had been convicted under the Smith Act.

A backlash followed. Conservative members of Congress mounted a campaign to take jurisdiction in subversion cases away from the Supreme Court. The effort failed, but it did move the Court back towards the right politically--if only temporarily. One of the cases resulting from this switch in orientation was Scales v. United States.