Scales v. United States

Junius Scales was a Communist Party activist who was convicted in the U.S. District Court for the Middle District of North Carolina of having violated the Smith Act's membership clause. His appeal of this felony conviction failed, and Scales took his case to the U.S. Supreme Court. Writing for the 5-4 majority that upheld Scales's conviction, Justice Harlan explained that it was the "active" nature of Scales's involvement that violated the law:

[None] of the criminal provisions [of the Smith Act] shall be construed so as to make "membership" in a Communist organization "per se a violation." . . . Although we think that the membership clause on its face goes beyond making mere Party membership a violation, in that it requires a showing both of illegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence . . . as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends.

By interpreting the membership clause this way, the Court was able to get around Scales's First and Fifth Amendment objections. If membership in a subversive organization was not by itself a crime, then the Smith Act could not rob Scales of his right to speak his mind and associate with whomever he pleased. "Active" membership in an organization that plotted the violent overthrow of the government, however, crossed the line into criminality--and pursuing criminals cannot be construed as a violation of due process.

Scales involved some very fancy footwork. The same day that the Court decided this case, in Noto v. United States (1961) it also overturned the Smith Act conviction of a Communist Party member who was apparently less active than Junius Scales had been. The coalition of conservative opinion that produced Scales was an unstable one. After the retirement of Justice Frankfurter in 1962, Justice Harlan--and the other members of the Court--turned once again to their civil rights orientation, invalidating many legal leftovers from the Cold War.