Contempt Power, Judicial (Update)

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Contempt is an ancient process for punishing disrespect for, disruption of, or disobedience of a lawful order of the government. For centuries in England and the United States the process was essentially unregulated. Individual judges and legislative houses defined and punished contempt as they saw fit.

Arguably, little has changed. Federal contempt statutes are notoriously vague and do not limit the power to punish. Although contempt of Congress proceedings are not unheard of, most modern contempt proceedings (including contempt of Congress) involve the judiciary. Contempt is invoked to deal with conduct ranging from misbehavior in court, to refusals to supply information, to failures to make support payments, to disobedience of orders regulating protests at abortion clinics, and much else.

Contempt is nowhere mentioned in the Constitution, but repeated instances of serious abuse have led the Supreme Court to impose both substantive and procedural limits on the contempt power, relying on various provisions of the Constitution.

For example, judges long used contempt to punish those who criticized their decisions. The Court has in the last fifty years repeatedly held that such punishments abridge the first amendment guarantee of freedom of speech.

Another battle involved the right of accused contemnors to trial by jury. Historically, there was no such right; however, the contempt power was frequently employed to deny jury trials for alleged conduct that constituted both crimes and violations of court orders. The Court, recognizing the judge's inherent conflict of interest in a proceeding to vindicate the dignity and authority of the court, overruled centuries of precedent and held that the Sixth Amendment required a jury trial for serious contempt punishments.

Much in the law of contempt turns on the murky distinction between "civil" and "criminal" contempt. The distinction does not depend on whether the allegedly contumacious conduct constitutes a crime, but rather on the purpose of the contempt proceeding. If it is to punish a past act of contempt, the proceeding is said to be "criminal," and most of the constitutional protections afforded criminal defendants apply. If the purpose is to coerce compliance with an existing order—for example, by a cumulative fine or jail sentence until the contemnor obeys—or to compensate a party injured by the contumacious conduct, the proceeding is said to be "civil," and is governed by the more general standard of due process of law. The civil/criminal distinction is difficult to apply, especially where on-going acts allegedly violate a judicial order, and thus all three purposes may be served by the same proceeding. This has led to much confusion over the procedural protections available to those accused of contempt.

Another distinction contributing to procedural confusion is between "direct" and "indirect" contempts. A "direct" contempt is an act of disrespect or disobedience personally observed by the judge. On the theory that no fact-finding process is necessary, "direct" contempts may be punished "summarily," that is, without a formal trial. "Indirect" contempts involve conduct outside the presence of the judge, requiring some form of trial to determine what occurred. Despite efforts by judges to expand the category of "direct" contempts, the Court has limited the summary contempt power as a matter of due process to acts committed in the judge's presence requiring immediate response to protect the court's ability to function.

The law of contempt thus presents many difficult issues. In addition to the procedurally confusing distinctions, there is still neither a generally accepted definition of contumacious behavior nor a framework for assessing the appropriate severity of sanctions. And there is the recurring problem posed by those who prove impervious to coercive contempt sanctions, some of whom endure years of incarceration rather than comply. The Court may tell us in the future how the Constitution applies to these and other questions.

Earl C. Dudley, Jr.

(see also: Clinton v. Jones.)


Brautigam, Richard C. 1972 Constitutional Challenges to the Contempt Power. Georgetown Law Journal 60:1513–1536.

Dobbs, Dan B. 1971 Contempt of Court: A Survey. Cornell Law Review 56:183–284.

Dudley, Earl C., Jr. 1993 Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts. Virginia Law Review 79:1025–1098.

Fox, Sir John C. 1927 The History of Contempt of Court. Oxford, England: Clarendon Press.

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

Kuhns, Richard B. 1978 The Summary Contempt Power: A Critique and New Perspective. Yale Law Journal 88:39–123.

Oswald, James F. 1892 Contempt of Court, Committal, and Attachment and Arrest Upon Civil Process in the Supreme Court of Judicature. London, England: W. Clowes.

Raveson, Louis S. 1990 A New Perspective on the Judicial Contempt Power: Recommendations for Reform. Hastings Constitutional Law Quarterly 18:1–65.