Contempt Power, Judicial

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The Constitution nowhere mentions contempt of court. The courts' powers in this area flow instead from a common law tradition of debated antiquity and legitimacy. Contempt power has, however, become entangled with the Constitution in two respects: first, courts have had to explain how they came to exercise a power that in some respects seems antithetical to constitutional values; second, the Constitution has been held to limit some aspects of the courts' exercise of contempt power.

Contempt is the disobedience of a court's order or interference with its processes. Most judicial decrees are not orders to do or refrain from doing some act. Contempt would not arise, for example, from the simple failure to pay a money judgment. Some judgments, however, directly order a party to perform or refrain from performing some act. A court might order a party to transfer land, to integrate a school system, to cease polluting a stream, to answer questions put by the other side, or to refrain from obstructive behavior in the courtroom.

Having disobeyed such an order, one might be charged with a crime (since many jurisdictions make such acts criminal) or with contempt. Either charge might result in a fine or jail sentence, but the accompanying process might differ. For some categories of contempt the contemnor may suffer punishment without many of the rights normally attaching to criminal trials: to be represented by counsel, to prepare for trial, to present testimony, to cross-examine witnesses, or to have a trial by jury. The list is extreme and would not apply to all of the often confusing categories of contempt developed by the courts, but it illustrates the potentially drastic nature of the power.

Courts employ such "criminal" contempt sanctions to redress judicial dignity, but individual litigants may also use contempt sanctions to gain the benefit of court orders. A party seeking to compel obedience to an injunction entered at his request may ask a court for a "civil" contempt sanction. Such a sanction typically orders the contemnor to jail or to the payment of a progressively mounting fine until he "purges" himself of the contempt by obeying the injunction in question. Though an accused civil contemnor enjoys the rights of counsel, testimony, and cross-examination, his hearing has none of the protections accorded criminal defendants, for the courts have held that this is a "civil" rather than a "criminal" proceeding in spite of the risk of imprisonment. Nor is the duration of the imprisonment or the size of the fine subject to any limitation save the discretion of the judge and the contemnor's continuing ability to perform the act required of him.

Justifying the use of apparently criminal penalties without protections constitutionally accorded criminal defendants, the courts have relied on claims of history, necessity, and categorization. The claim of history has rested on the propositions that at the time the Constitution was framed courts had long exercised contempt powers and that the Framers did not intend to alter them. Those claims have been challenged but are still made. The claim of necessity still urges the need for orderly adjudicatory proceedings and enforceable orders. The argument rests on the hypothesis that, were the usual restrictions of the bill of rights to apply to contempt proceedings, the courts would be unable to function. The argument from categorization involves simply the assertion that because neither civil nor criminal contempts involve "crimes," the portions of the Bill of Rights applicable to crimes do not apply. In the case of imprisonment for civil contempt this argument is bolstered by the circumstance that the contemnor has the power at any time to obtain his release by complying with the order—a power not enjoyed by a convicted criminal.

Though the courts' exercise of contempt power has thus been remarkable for the absence of constitutional constraints, some limits do exist. First, state and federal legislatures have statutorily required greater protections that the Constitution mandates. Second, the Supreme Court has imposed some constitutional limits: in criminal contempts the judge must find the defendant guilty beyond a reasonable doubt; in "indirect" contempts (those not committed before a judge or involving judicial officers) the contemnor is, in addition, accorded the rights of counsel, testimony, and cross-examination. Even in cases of direct contempt the contemnor may have a trial by jury if the judge proposes to inflict a serious penalty. Yet even in enunciating these protections, the Court has steadfastly insisted that the judge has a wide power to impose sentence on the spot for contemptuous behavior in the courtroom.

Judicial use of contempt power involves a collision between two desiderata: that of having tribunals able to conduct their proceedings and enforce their orders; and that of having persons whose freedom stands in jeopardy enjoy the protections of the Bill of Rights. Thus far the courts have concluded that in many situations the first goal necessitates subordinating the second.

Stephen C. Yeazell


Goldfarb, Ronald L. 1963 The Contempt Power. New York: Columbia University Press.