Earl Warren

“ Finally, I think the Court of Appeals erred in sustaining an order of the Board which was based, in part, on a finding which the court admitted lacked evidentiary support. Section 13 (e) of the Act lists eight criteria which the Board should consider in determining whether a group is a Communist-action organization. The seventh of these criteria is the extent to which 'for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives,' 64 Stat. 999, an organization engages in certain secret practices or otherwise operates on a secret basis. ”

“ For all we know, a cross-examination of Gitlow based on his prior memoranda, or a full cross-examination of Budenz based on his prior statements to the FBI and his testimony inconsistent therewith, might have disclosed further possibilities of perjury. Nor can I agree with the suggestion that since Congress, in the Communist Control Act of 1954, branded the Communist Party as 'an instrumentality of a conspiracy to overthrow the Government of the United States,' 68 Stat. ”

“ The Court holds that petitioner may not now challenge the Board's refusal to order the production of the Gitlow memoranda because it failed to raise the question in its 1955 petition for certiorari. With due respect, I must dissent from this holding, which, to the extent that it transforms Rule 23, subd. 1 (c) of our Rules of Procedure, 28 U.S.C.A. [3] into an immutable rule of abandonment, is both unorthodox and unwise. The Court's position will not bear analysis. ”

“ Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626, 'If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.' An agency's 'action must be measured by what (it) did, not by what it might have done.' Id., 318 U.S. at pages 93-94, 63 S.Ct. ”

“ The Court also noted that a remand was required because the 'fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.' Id., 351 U.S. at page 124, 76 S.Ct. ”