Byron White

“ The Court's conclusion that a statute which is both underinclusive and overinclusive must be deemed to have been adopted with a punitive purpose assumes that legislatures normally deal with broad categories and attack all of an evil at a time. Or if partial measures are undertaken, a legislature singles out a particular group for regulation only because the group label is a 'shorthand phrase' for traits that are characteristic of the broader evil. But this Court has long recognized in equal protection cases that a legislature may prefer to deal with only part of an evil. ”

“ But § 32 disqualifies only partners and employees of underwriting firms, not other businessmen with conflicting interests. And § 504 applies to any man who occupies the two positions of labor union leader and member of the Communist Party. If based upon 'its general knowledge of human psychology' Congress may make findings about a group including members and employees of underwriting firms which disqualify such persons from a certain office, why may not Congress on a similar basis make such a finding about members of the Communist Party? ”

“ Conviction of a felony, the Court reasoned, may be evidence of character:
'It is not open to doubt that the commission of crime * * * has some relation to the question of character. It is not, as a rule, the good people who commit crime. When the legislature declares that whoever has violated the criminal laws of the state shall be deemed lacking in good moral character, it is not laying down an arbitrary or fanciful rule, one having no relation to the subject-matter, but is only appealing to a well-recognized fact of human experience. ”

“ Section 504 of the Labor-Management Reporting and Disclosure Act is therefore a bill of attainder because in pursuit of its purpose of preventing political strikes, it has specified the persons-Communist Party members-who are to be disqualified from holding union office, rather than excluding all persons who might engage in the undesirable conduct. ”

“ Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 244, 77 S.Ct. 752, 759, 1 L.Ed.2d 796 (absent findings respecting nature of Communist Party at time of bar applicant's membership, membership in Party 15 years prior to application provides no rational ground for disqualification) .
This, of course, is not the path the Court follows. Section 504 is said to impose punishment on specific individuals because it has disqualified all Communist Party members without providing for a judicial determination as to each member that he will call a political strike. ”

“ Like § 504, the statute there under consideration did not cover all persons who might be likely to call political strikes. Nevertheless, legislative findings that some Communists would engage in illegal activities were sufficient to sustain the exercise of legislative power. The Bill of Attainder Clause now forbids Congress to do precisely what was validated in Douds. ”

“ The same might be said about § 504, as was said about its predecessor: 'Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by § 9 (h) would be subject to 'tempting opportunities' to commit acts deemed harmful to the national economy. ”

“ But the Court then goes on to reject the argument that Communist Party membership is in itself a characteristic raising such a likelihood. The Court declares that ' (e) ven assuming that Congress had reason to conclude that some Communists would use union positions to bring about political strikes, '* * * it cannot automatically be inferred that all members shar (e) their evil purposes or participat (e) in their illegal conduct. ”