Imprisoned for Membership: The Junius Scales Case
![handle is hein.journals/cdozo11 and id is 805 raw text is: IMPRISONED FOR MEMBERSHIP:
THE JUNIUS SCALES CASE
INTRODUCTION
Sandra L. Cobden, James A. Rogers, and David Rudenstine*
On June 5, 1961, a sharply divided Supreme Court affirmed the
conviction of Junius Scales for being a member of the Communist
Party.I The Court's decision came after an arduous journey through
the federal judicial system that included two district court trials, two
appeals to the United States Court of Appeals, and three Supreme
Court arguments.2
Scales was convicted under the membership clause of the Smith
Act which made it a felony to be a knowing member of any organiza-
tion that advocated the forceful overthrow of the United States gov-
ernment.3 As interpreted by the Court, a conviction under the
membership clause required proof of active membership in a subver-
sive organization, knowledge of the organization's aim to overthrow
* Sandra L. Cobden and James A. Rogers are 1990 graduates of Benjamin N. Cardozo
School of Law. David Rudenstine is a Professor of Law at Cardozo. The authors wish to
thank Maria Whitman for her assistance on this Introduction.
I Scales v. United States, 367 U.S. 203 (1961) (5-4 decision).
2 Scales was indicted in 1954 and convicted for the first time in 1955. United States v.
Scales, MDNC CR 4320-G (M.D.N.C. 1955). The Fourth Circuit sustained his conviction
later that same year. 227 F.2d 581 (4th Cir. 1955). The Supreme Court granted certiorari,
scheduling the case to be heard during the 1956 Term. 350 U.S. 992 (1955). The case was
argued before the Court on October 10-11, 1956, and then restored to the docket for reargu-
ment on June 3, 1957. 353 U.S. 979 (1957). Before the reargument could take place, however,
the United States moved to reverse, conceding that the Court's intervening decision in Jencks
v. United States, 353 U.S. 657 (1957), entitled Scales to a new trial. The Court granted the
United States's motion and reversed Scales's conviction. 355 U.S. 1 (1957). Scales was retried
and convicted for a second time in 1958. United States v. Scales, MDNC CR 4320-G
(M.D.N.C. 1958). The Fourth Circuit again upheld his conviction. 260 F.2d 21 (4th Cir.
1958). The Court granted certiorari on December 15, 1958. 358 U.S. 917 (1958). After oral
arguments on April 29, 1959, the case was rescheduled for reargument on November 11, 1959,
so that the parties could address certain questions specified by the Court. 360 U.S. 924 (1959).
No argument was heard in November, however, because the Court had granted certiorari in
Noto v. United States, 361 U.S. 813 (1960), which raised questions related to Scales. The Court
put both cases over until February 23, 1960. On February 5, 1960, the Court granted certio-
rari in Communist Party of the United States v. Subversive Activities Control Board [SA CB], 361
U.S. 951 (1960), that involved similar constitutional and statutory issues to those raised in
Scales and Noto. As a result, the Court rescheduled both cases to be heard on the same day as
SACB. 361 U.S. 952 (1960). Scales was argued before the Court for the final time on October
10, 1960. On June 5, 1961, the Court affirmed Scales's conviction. 367 U.S. 203 (1961).
3 Act of June 28, 1940, ch. 439, 54 Stat. 670 (codified at 18 U.S.C. §§ 2385, 2387 (1988)).](ViewImageLocal?handle=hein.journals/cdozo11&div=38&collection=&method=preview&ext=.png&size=3)
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Imprisoned for Membership: The Junius Scales Case
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