History In Ink®  Historical Autographs


Harold H. Burton

Tom C. Clark

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From the personal collection of Supreme Court Justice Tom C. Clark


“I vote to affirm, . . . & we should do this tomorrow.”

Harold Hitz Burton (1888–1964), Associate Justice, United States Supreme Court, 1945–1958, and Tom Campbell Clark (1899–1977), Associate Justice, United States Supreme Court, 1949–1967. Superb, extraordinarily rare Autographed Note by Justice Burton, one page, 5½” x 8½”, on plain stationery, no place [Washington, D.C.], no date [April 1951], accompanied by an Autographed Note by Justice Clark, one page, approximately 5½” x 3”, no place [Washington, D.C.], no date.

This is an exceptionally rare internal Supreme Court memorandum from Justice Burton to Justice Clark asking him to cast Burton’s vote on a case.  He writes, in full:  “I vote to affirm, & believe that our statement referring to the opinions of the Maryland Court & statement of the Attorney General can make our position sufficiently clear & we should do this tomorrow.”  Burton’s unsigned note is accompanied by an unsigned explanatory note by Clark:  “This is Justice Burton on Gerende case–  He had to leave the conference & left this with me to vote for him–  I thought you might want it for the book.”

Supreme Court Justices meet in conference, usually on the Friday of each week that they hear oral arguments, and at other times, to discuss pending cases and vote on how they intend to rule.  In this instance, Burton left early but asked Clark to cast his vote in Gerende v. Board of Supervisors of Elections, 341 U.S. 56 (1951).

Gerende arose out of the widespread American fear in the late 1940s and early 1950s of Communist infiltration and subversion, the hysteria that gave rise to McCarthyism.  In 1949, Maryland enacted legislation providing that no person “shall become a candidate for election . . . to any public office . . . unless he or she shall file . . . an affidavit that he or she is not a subversive person.”  The statute defined a subversive person to be “any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises, or teaches, by any means, any person to commit, attempt to commit, or aid in the commission of, any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of the constitutional form of the Government of the United States or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence, or who is a member of a subversive organization or a foreign subversive organization.”  The Maryland Court of Appeals, the state’s highest court, held that the definition “does not mean a peaceful revolution, but means a revolution accomplished by force or violence.

Thelma Gerende, a member of the Progressive Party, first sought election to the United States House of Representatives and later to a municipal position in Baltimore.  In her run for Congress, Gerende objected to making the affidavit and refused to do so.  In Shub v. Simpson, 196 Md. 177, 196, 76 A.2d 332, 340 (1950), the Maryland Court of Appeals ruled that the affidavit requirement applied to candidates for state office but not to Gerende, since the state could not add qualifications for federal office that the federal government itself did not impose.  “Whatever may be the subversive activities of such a candidate,” the Court of Appeals said, she is not ineligible unless the House of Representatives itself so holds.

But that rule did not apply, it said, when Gerende subsequently sought a municipal position in Baltimore.  In a one-sentence decision in Gerende v. Board of Supervisors of Elections, 197 Md. 282, 78 A.2d 660 (1951), the Court of Appeals, citing its earlier ruling in Shub, affirmed the trial court’s decision keeping Gerende off the municipal ballot because she did not make the affidavit, which the state could require for offices within the state.  Gerende appealed to the United States Supreme Court, the case in which Justice Burton wrote this note to Justice Clark.  Burton’s view became the decision of the Supreme Court, which ruled summarily three days after the case was argued.  The Supreme Court said:

This is an appeal from a decision of the Court of Appeals of the State of Maryland the effect of which is to deny the appellant a place on the ballot for a municipal election in the City of Baltimore on the ground that she has refused to file an affidavit required by state law. . . . The scope of the State law was passed on in [Shub].  We read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt. . . . At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement.  Under these circumstances and with this understanding, the judgment of the Maryland Court of Appeals is affirmed.

Eight of the nine Justices, including Burton and Clark, joined the Court’s unsigned opinion.  Justice Stanley Reed concurred only in the result.

Justice Clark’s note that “I thought you might want it for the book” references the collection of Supreme Court autographs that he was assembling.  Clark kept the collection in sheet protectors, and with most of the items he inserted a white bond paper backing sheet bearing the typed name of the Justice with whose autograph it was stored.

These two pieces are in very fine condition.  Burton has written his note in dark pencil, and Clark wrote his in pencil in a bit lighter hand.  Burton’s note has one horizontal fold and a paper clip impression at the left blank margin.  Clark’s note has an irregularly torn left margin, a paper clip impression and small stain at the left, and a couple of words in pencil, apparently from a different set of notes, on the back.

Provenance:  These pieces come from the personal collection of Justice Clark.  We are privileged to offer a number of items from the collection.  These come with the backing page, which bears the federal eagle watermark and Justice Burton’s typed name, but they are not laid down to the backing sheet.

Unframed.  Please ask us about custom framing this piece.


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