Contempt of court is a legal concept empowering courts to address threats to the orderly conduct and integrity of judicial proceedings in the form of disrespectful or disruptive behavior and disobedience to court orders. Courts have classified contempt as a unique offense that does not necessarily trigger the constitutional protections incident to other criminal prosecutions. While some contempt proceedings are tried according to a traditional criminal process that includes the right to a jury, others are disposed of by summary process, with the judge the sole determiner of the procedure to be followed and the outcome of the case. In some instances, summary process consists of a contempt citation issued without notice or a hearing. In addition, some contempt citations are classified as civil rather than criminal, obviating entirely the protections extended to criminal defendants. This essay chronicles the history of the contempt power in the federal courts with a focus on changes over time in judicial interpretations of the scope of the power. After providing a brief background of the contempt power, the essay explores the different types of contempt, the evolution of a defendant’s right to a jury trial when charged with contempt, and controversies involving the use of the contempt power.

By the fourteenth century, English judges employed the contempt power to enforce obedience to writs, address dereliction of duty by court officers, and punish contumacious behavior (a legal term meaning disobedient or disrespectful conduct showing contempt for the court or the law), whether committed in or out of court. The philosophical underpinnings of the power, however, were arguably different than those underlying what emerged later in American courts. With no separation of powers, English courts were representatives of the monarch, issuing writs and judgments on the monarch’s behalf. Their power to hold offenders in contempt was aimed at protecting the dignity of the sovereign rather than that of the courts or their judges. Courts likewise imposed punishment for contempt in colonial America, but those courts also derived their power from the English crown.

Some scholars have suggested that the Founders, based on their knowledge of English law, did not see the contempt power as inherently or primarily judicial. Few revolutionary-era state constitutions granted contempt power explicitly, and those that did granted it to the legislative but not the judicial branch. Available evidence, including the Federalist Papers, suggests that the framers of the Constitution did not consider contempt to be part of the “judicial power” conveyed by Article III. After ratification, however, Congress vested the judiciary with contempt power via the Judiciary Act of 1789, establishing the lower federal courts and empowering them “to punish by fine or imprisonment . . . all contempts of authority in any cause or hearing before the same.”

The scope of the contempt power in the federal courts under the 1789 act was put to the test in 1826, when an attorney who lost a case before U.S. District Judge James H. Peck of Missouri criticized the judge’s decision in an anonymous letter to the editor published in The Missouri Advocate and St. Louis Enquirer. When the attorney’s identity as the author came to light, Judge Peck held him in contempt, sentencing him to one day in jail and suspending his license to practice law for eighteen months. Many members of Congress believed that Peck had abused his power by imposing punishment for an action committed outside of court (and after the proceedings were over) that had posed no immediate threat to the administration of justice. As a result, the U.S. House of Representatives impeached Peck, charging that he had acted “to the great disparagement of public justice, the abuse of judicial authority, and to the subversion of the liberties of the people of the United States.” In exercising his contempt power, the House alleged, Peck had acted to vindicate his rage at a personal affront rather than to ensure the orderly operation of his court. Those seeking Peck’s removal believed that even if the attorney’s letter were libelous, the lawyer should have been indicted and tried before a jury instead of Peck punishing him unilaterally.

Peck was tried before the U.S. Senate, sitting as a court of impeachment. The trial began in April 1830 but a lengthy recess from May to December of that year pushed the case’s resolution to January 31, 1831. With twenty-nine votes needed for conviction, twenty-two senators found Peck guilty with twenty-one voting for acquittal. Peck thus retained his seat on the bench, where he continued his judicial service until his death in 1836.

While the 1789 act granted federal courts authority to issue punishment for contempt committed in their view, there was at the time of the Peck impeachment some uncertainty over the extent, if any, to which courts possessed the same power for actions committed outside of court.[1] Immediately after Peck’s acquittal, Congress took action to clarify the scope of the contempt power and place a limit on its application to actions away from court. U.S. Representative (and future president) James Buchanan of Pennsylvania, who had been a House manager during the impeachment proceedings, quickly introduced a bill with this goal in mind. Passed in 1831, the act limited punishment for contempt to acts committed in the presence of the court “or so near thereto as to obstruct the administration of justice,” misbehavior by an officer of the court, or disobedience to a lawful court order. While it has been subjected to varying judicial interpretations, the statutory language regarding the federal courts’ power to punish for contempt, now codified at 18 U.S.C. § 401, has not changed significantly since 1831.

In Ex parte Poulson (1835), Justice Henry Baldwin provided the first judicial interpretation of the new contempt statute while sitting on the U.S. Circuit Court for the Eastern District of Pennsylvania. During a trial before Baldwin, the plaintiff’s lawyer moved that a non-party be held in contempt for republishing a newspaper article insulting the plaintiff. Though aggrieved by the article and unhappy with the statute’s limitation of the contempt power, Baldwin noted that “The action of the press is noiseless, producing the same effects, far or near, it matters not. The business of the court is not interrupted.” No publication, he held, could be the subject of a contempt charge unless it used threats to intimidate or influence a juror or witness or to impede an officer from carrying out their duties.

The Supreme Court first had occasion to rule on the validity of congressional regulation of the contempt power in 1874. In Ex parte Robinson, the Court found that a district judge lacked the power to disbar an attorney for contempt because the 1831 statute provided only the remedies of fine or imprisonment, thereby negating all other forms of punishment. Justice Stephen Field wrote that the contempt power “is inherent in all courts,” because of its essential role in preserving order in judicial proceedings and enforcing court orders. Nevertheless, he acknowledged, judicial exercise of the power was subject to limitation by Congress, which had established the lower federal courts and defined the scope of their powers. In a 1924 article published in the Harvard Law Review, professor (and future Supreme Court justice) Felix Frankfurter and coauthor James Landis also expressed approval of congressional regulation of the lower federal courts’ contempt power, arguing that it did not intrude upon the separation of powers.

While the 1831 statute defined the scope of the contempt power, it did not prescribe the procedure courts were to follow before punishing a contemnor. No court had ruled that a criminal contempt defendant was entitled to a jury trial, so courts could punish all contempt by summary process. Summary process, however, did not necessarily mean no process at all. In two cases in the late 1880s, the Supreme Court drew a distinction between direct contempt, committed in view of the court, and indirect contempt, committed in the presence of the court but out of its direct view. In Ex parte Terry (1888), former California chief justice David Terry was sentenced to six months in prison for contempt after assaulting a U.S. marshal who was attempting to remove his wife from a federal courtroom. In denying Terry’s petition for a writ of habeas corpus, the Court noted, “it is a settled doctrine . . . that for direct contempts committed in the face of the court . . . the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred.”

Soon after, in Savin, Petitioner (1889), a trial court found a non-party in contempt for attempting to induce a witness not to testify. The Court held that the contemnor’s actions, committed in the witness room and hallway of the courthouse, were done “in the presence of the court” within the meaning of the contempt statute. In contrast to Terry, however, the contempt in Savin was indirect because the judge did not witness the defendant’s actions but learned of them from the prosecutor and the witness. “[I]n cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof,” wrote Justice John Marshall Harlan, “the proper practice is . . . to require the offender to appear and show cause why he should not be punished.” 

Procedural protections afforded a defendant could also depend on whether a contempt was classified as civil or criminal. While courts have consistently acknowledged that the difference is not always clear, the Supreme Court explained the basic principle in Gompers v. Buck Stove and Range Co. (1911). Frequently, said the Court, the nature of the contempt hinged on the purpose of the punishment: “If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Civil contempt is aimed at coercing compliance with a court order requiring action for the benefit of a party to the litigation (with the consequence that incarceration for civil contempt may be of indefinite duration), such as testifying, producing documents, or revealing the location of assets. Because punishment is not the purpose of a civil contempt proceeding, defendants have not been accorded rights associated with criminal prosecutions. In contrast, the Court in Gompers held that a criminal contempt defendant, although subject to summary process and not entitled to a jury trial, possessed the rights to be presumed innocent, to be proven guilty only if beyond a reasonable doubt, and to remain silent.

Congress first provided the right to a jury trial for some criminal contempt defendants in the Clayton Act of 1914. The act was passed during a period of widespread struggles between organized labor and large-scale employers. Federal courts frequently issued injunctions against strikes or boycotts, orders tending to restrain the actions of large numbers of people. As Frankfurter and Landis noted in their 1924 article, these injunctions gave the government power to conduct “law enforcement en masse” through criminal contempt proceedings. The Clayton Act was aimed in part at ensuring that defendants facing allegations that would ordinarily entitle them to a jury trial were not deprived of their rights simply because their alleged crime also violated an injunction and could therefore be characterized as contempt.

The Clayton Act provided that a person charged with criminal contempt of court for disobedience to a lawful order of a U.S. district court would, if their act was classified as a criminal offense under any federal statute, be entitled to a jury trial and that their punishment could not exceed a fine of $1,000 or six months’ imprisonment. These provisions did not apply, however, to contempt committed in the presence of the court or so near thereto as to obstruct the administration of justice, or to contempt committed in a suit brought by the United States. The Supreme Court upheld the Clayton Act’s jury provision in Michaelson v. United States (1924), finding it acceptable because it did not interfere with the court’s power to punish contempt committed in its presence or to use civil contempt to coerce affirmative compliance with a court order.

In 1918, a contempt case bearing some similarity to Judge Peck’s of 1826, in that it concerned publications critical of the court, came before the Supreme Court. A matter of great public interest—a dispute over streetcar fares between the city of Toledo and a transit company—was tried in a U.S. district court. After the trial, the district judge held a newspaper publisher in contempt of court for a series of articles which, he asserted, were aimed at unduly influencing his conduct of the trial and delegitimizing the proceedings in the public eye. The contempt case, Toledo Newspaper Co. v. United States, required the Supreme Court to interpret the statutory provision of punishment for contempt committed “so near [the court] as to obstruct the administration of justice.” The Court upheld the contempt citation despite a lack of evidence that the judge had been influenced by, or even seen, the articles during the trial. Chief Justice Edward White’s majority opinion interpreted the statute to cover acts that had a “tendency” to obstruct judicial proceedings regardless of whether they had accomplished this result in a particular case.

Justice Oliver Wendell Holmes dissented, disagreeing with the majority’s “tendency” test and interpreting the contempt statute to require actual obstruction rather than a mere threat of obtrusion into proceedings. In Justice Holmes’ view, the fact that the district judge had endured the newspaper’s attacks for six months before issuing the contempt citation was enough to prove a lack of interference with the court’s operations that would have brought the newspaper’s conduct within the contempt statute. Even an assumption that the judge had read the articles privately during the proceedings would not have changed Holmes’ mind. Asserting that a federal judge “is expected to be a man of ordinary firmness of character,” the justice disagreed that the articles would have prevented the judge from presiding impartially over the streetcar dispute. If the newspaper’s conduct had violated a criminal law, Holmes asserted, it should have been addressed in the same fashion as any other illegal act.

Frankfurter and Landis addressed the case in their article and sided with Justice Holmes, asserting that the Court had misinterpreted the 1831 act in applying it to a publication made out of court. The Court’s decision, they argued, had restored to the law the very abuses that the act was meant to eliminate in the wake of the Peck impeachment. Because of the Toledo Newspaper opinion, some lower federal courts had “in effect written this Act off the statute books.” In Nye v. United States (1941), the Supreme Court’s majority opinion cited Frankfurter and Landis’ article in ruling that the Toledo Newspaper Court had construed the 1831 statute too broadly. The Nye Court interpreted the statute’s proximity requirement in geographic terms, holding that a contempt committed out of court “must be in the vicinity of the court. . . . It is not enough that the misbehavior charged has some direct relation to the work of the court.” If the provision were interpreted only in causal terms, wrote Justice William Douglas, then the contempt statute “by the process of judicial construction will have regained much of the generality which Congress in 1831 sought to remove.” The “relatively recent” construction given the statute by the Toledo Newspaper Court was thus overturned.

The Federal Rules of Criminal Procedure, first promulgated in 1944, substantially restated existing statutory law regarding criminal contempt. Rule 42 provided that criminal contempt could be punished immediately “if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” All other criminal contempt was to be prosecuted “upon notice and hearing,” with a jury trial available only if provided for by statute. In addition to the Clayton Act, the Norris-LaGuardia Act of 1932 had provided for jury trials for indirect contempt arising from labor disputes but did not except suits brought by the federal government as the Clayton Act had. In later decades, Congress included similar provisions in two civil rights statutes. The Civil Rights Act of 1957 left it to the judge’s discretion whether one charged with criminal contempt under the act would receive a jury trial unless the sentence exceeded a $300 fine or forty-five days in prison, in which case the defendant could demand a jury trial de novo. The Civil Rights Act of 1964 provided for a jury trial for all criminal contempts in cases arising under the act and limited punishments to a $1,000 fine or imprisonment for six months.

Despite congressional expansion of the right to a jury trial in contempt cases, the federal courts continued to try many contempts by summary process. In Green v. United States (1958), the Supreme Court rejected an argument that such procedure was unconstitutional when applied to a contempt committed out of court and carrying the potential for a heavy sentence. In that case, several Communists violated a district court’s surrender order and jumped bail after their Smith Act convictions were upheld in Dennis v. United States (1951). The defendants surrendered after more than four years as fugitives and were then tried for contempt without an indictment or a jury and sentenced to three years in prison in addition to their original five-year sentences. The defendants claimed that their sentences on the contempt charge could not exceed one year because the Fifth Amendment required that the prosecution of all “infamous” crimes (i.e., crimes punishable by more than one year in prison) be based on a grand jury indictment. The Court dismissed this argument, pointing by way of analogy to the “long and unbroken line of decisions” establishing “that criminal contempts are not subject to jury trial as a matter of constitutional right.” Although the defendants argued for a grand jury indictment, and not a jury trial, the Court found the lack of a jury requirement demonstrative of the principle that criminal contempts “possess a unique character under the Constitution,” and were thus not covered by the Fifth Amendment provision regarding infamous crimes.

Justice Hugo Black’s dissenting opinion in Green argued that the contempt power gave judges the ability to impose virtually unlimited punishments without the procedural safeguards normally attending criminal prosecutions. “I would reject those precedents,” he wrote, “which have held that the federal courts can punish an alleged violation outside the courtroom of their decrees by means of a summary trial, at least as long as they can punish by severe prison sentences or fines as they now can and do.” The power to punish contempts summarily, he asserted, “seems inconsistent with the most rudimentary principles of our system of criminal justice,” and no official, including judges, “should be granted such autocratic omnipotence.”

Justice Black’s view regarding severe punishments for contempt was soon vindicated. The Warren Court’s expansion of the rights of criminal defendants in the 1960s included those charged with criminal contempt, culminating in a significant enlargement of the right to a jury trial. The Court made a tentative beginning in United States v. Barnett (1964), upholding the right of federal courts to punish for contempt without a jury trial but suggesting that a jury trial might be warranted in serious cases involving substantial sentences. The Court upheld a contempt sentence of six months imposed without a jury trial In Cheff v. Schnackenberg (1966) on the basis that the U.S. Code defined a misdemeanor subject to imprisonment for six months or less as a “petty offense,” and the Sixth Amendment did not require jury trials for petty offenses. While the Court in Cheff was not required to rule on the validity of summary proceedings for more serious contempt charges, it cited its supervisory authority over criminal proceedings in ruling that federal courts could not impose a sentence of longer than six months for contempt without a jury trial or waiver thereof.

After ruling in Duncan v. Louisiana (1968) that the Sixth Amendment’s guarantee of a jury trial for serious offenses applied to the states, the Court held in Bloom v. Illinois (1968) that state courts were subject to the rule expressed in Cheff as well. The Court stressed that despite prior holdings to the contrary, criminal contempt was no different than any other crime and should be treated as such. “If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases,” wrote Justice Byron White for the majority.

The six-month rule laid down in Cheff soon gave rise to a related question: must a defendant convicted of multiple counts of contempt, each carrying a sentence of six months or less, be granted a jury trial if the sentences exceed six months in the aggregate? The Supreme Court addressed this issue in two cases arising in state court. For a crime with a statutory maximum penalty, the Court explained, the maximum allowable sentence determined the seriousness of the offense for Sixth Amendment purposes. Because Congress had not provided a statutory maximum punishment for criminal contempt, however, the Court adopted the rule that the actual length of incarceration imposed would determine the right to a jury trial. In accordance with this rule, the Court upheld contempt sentences totaling more than four years imposed without a jury in Taylor v. Hayes (1974) because the sentences ran concurrently so the defendant would serve only six months in jail. Correspondingly, the Court held in Codispoti v. Pennsylvania (1974) that a jury trial was required where sentences on multiple counts of contempt were to run consecutively for more than six months in total.

In light of this case law, federal judges in recent decades have frequently conducted summary proceedings for contempt while agreeing before trial that they will not impose a sentence entailing incarceration for more than six months. When a defendant is convicted before a jury, however, judges retain substantial discretion in sentencing. In addition to the fact that there is no statutory maximum punishment, the federal Sentencing Guidelines do not include criminal contempt. Judges also possess discretion over other aspects of contempt proceedings. In Young v. United States (1987), for example, the Court held that judges were entitled to initiate criminal prosecutions for out-of-court contempt as part of their power to vindicate judicial authority. While judges should request that the action be undertaken by the relevant prosecutorial authority, they could, if that request were denied, appoint private attorneys to act as special prosecutors.

The law governing a judge’s power to issue citations for contempt evolved in yet another way during the twentieth century. Perhaps the most common image of contempt of court in the mind of the public is that of a participant at trial—possibly an attorney frustrated by the court’s rulings—acting toward a judge in an openly insulting or disrespectful fashion. In some such instances, the law provides for the possibility that contempt proceedings will be assigned to a different judge. In Cooke v. United States (1925), a judge cited an attorney for contempt for delivering to the judge’s chambers a derogatory letter in which the attorney accused the judge of prejudice against his client. The accusations in the letter, wrote Chief Justice William H. Taft in his majority opinion, were “personally condemnatory and were calculated to stir the judge’s resentment and anger.” After holding that the contempt was indirect, which entitled the defendant to notice and hearing under Savin, Chief Justice Taft noted that caution must be exercised “where the contempt charged has in it the element of personal criticism or attack upon the judge.” In such cases, Taft suggested, a judge might call upon a colleague to handle contempt proceedings to avoid the potential for bias. In the case at hand, Taft remanded the case to the district court, instructing the trial judge to ask the senior judge of the circuit to assign a replacement.

The principle elucidated in Cooke appeared in Rule 42 of the Federal Rules of Criminal Procedure when it was first promulgated in 1944. For contempt subject to notice and hearing, the rule provided, a judge would be disqualified from presiding over the matter if the contempt charged involved “disrespect to or criticism of” that judge. In 1952, the Supreme Court declined to extend this restriction to cases involving contempt citations issued without notice or hearing, however. Following the convictions of Communist leaders in Dennis, the trial judge held several defense attorneys in contempt and sentenced them to imprisonment. During a bitter and contentious trial, the attorneys had acted toward the judge in ways appellate judges later characterized as “offensive and insulting,” “outrageous,” and “abominable.” In Sacher v. United States, Justice Robert Jackson dismissed the argument that the Dennis trial judge should have been disqualified from issuing contempt citations because of the personal nature of the contempt. Rule 42, he noted, “expresses no such limitation, and the contrary inference is almost inescapable. It is almost inevitable that any contempt of court committed in the presence of the judge during a trial will be an offense against his dignity and authority.” To preclude a judge from issuing a contempt citation in such circumstances would be to nullify the power, Justice Jackson asserted.   

Two years later, however, the Court undermined Sacher when it applied Cooke to a similar situation involving contempt citations issued immediately after trial in Offutt v. United States (1954). In Offutt, the Court focused on the judge’s reaction to an attorney’s contumacious behavior, noting that “in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance.” In the case at hand, the trial judge had “permitted himself to become personally embroiled” with the contemnor. “For one reason or another the judge failed to impose his moral authority on the proceedings. His behavior precluded that atmosphere of austerity which should especially dominate a criminal trial.” As a result, the Court remanded the contempt case for proceedings before another judge in accordance with Cooke. In Mayberry v. Pennsylvania (1970), the Court held that regardless of the reaction of the trial judge, contempt involving personal attacks on a judge could rise to a level where the potential for bias was unavoidable, requiring contempt proceedings before a different judge to satisfy due process rights.

A situation akin to those in Offutt and Mayberry occurred in what may have been the most remarkable contempt case in the history of the federal courts. The trial of the Chicago Seven—antiwar activists accused of inciting riots outside the 1968 Democratic National Convention—was as much a cultural event as a legal one. The defendants engaged in outlandish political theater throughout the trial as they and their attorneys clashed repeatedly with U.S. District Judge Julius Hoffman, who responded with caustic and denigrating comments. The trial began with eight defendants, but Judge Hoffman declared a mistrial with respect to Black Panther Party leader Bobby Seale and sentenced him to four years in prison for contempt, having earlier ordered that Seale be bound and gagged in the courtroom. After a trial characterized by constant disruptions, Hoffman cited the remaining defendants and their attorneys for 159 counts of contempt, imposing sentences ranging from two and a half months to more than four years. In In re Dellinger (1972), the U.S. Court of Appeals for the Seventh Circuit overturned the contempt citations, remanding them for trial before Judge Edward Gignoux of the District of Maine. While Judge Gignoux agreed that the defendants had committed contempt in a few of the charged incidents, he imposed no jail time, stating that “the contumacious conduct of the defendants and their lawyers cannot be considered apart from the conduct of the trial judge and prosecutors. Each reaction to provocation by the other, and the tensions generated during four and a half months of so acrimonious a trial cannot be ignored.”

The origin of the contempt power in the federal courts is subject to varying interpretations. Congress granted the power in 1789 and has continued to regulate its use by the judiciary. The Supreme Court, while recognizing the validity of congressional regulation, has stated that all courts possess the contempt power inherently. The difference is largely an academic one, however, as legislative modifications to the power have not been deemed to raise serious separation of powers concerns. The basic legal standard governing the federal courts’ power to punish for contempt has not changed significantly since 1831, but the law of contempt has evolved. Perhaps most significantly, defendants charged with contempt gained important procedural protections over the course of the twentieth century. Congress enacted several statutes providing for a jury trial in some circumstances, while judicial decisions expanded the right to a jury trial, limited the severity of punishment that could be imposed in the absence of a jury, and protected defendants against the potential for judicial bias. As it has evolved, the contempt power has remained an important mechanism by which the federal judiciary protects its dignity and authority.   

Further Reading
Bushnell, Eleanore. “The Impeachment and Trial of James H. Peck.” Missouri Historical Review 74, no. 2 (January 1980): 137­–165.

Fox, John Charles. “The King v. Almon.” Law Quarterly Review 24, no. 2 (1908): 184–198.

______________. “Summary Process to Punish Contempt.” Law Quarterly Review 25, no. 3 (1909): 238–254.

Frankfurter, Felix and James M. Landis. “Power of Congress over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers.” Harvard Law Review 37, no. 8 (1923–1924): 1010–1058.

Goldfarb, Ronald. “The History of the Contempt Power.” Washington University Law Quarterly 1961, no. 1 (February 1961): 1–29.

______________. “The Varieties of the Contempt Power.” Syracuse Law Review 13, no. 1 (Fall 1961): 44–80.

Green, Bruce A. “Federal Courts’ Supervisory Authority in Federal Criminal Cases: The Warren Court Revolution That Might Have Been.” Stetson Law Review 49, no. 2 (Winter 2020): 241–266.

Katz, Emile J. “The ‘Judicial Power’ and Contempt of Court: A Historical Analysis of the Contempt Power as Understood by the Founders.” California Law Review 109, no. 5 (October 2021): 1913–1958.

Yablon, Charles M. “Inherent Judicial Authority: A Study in Creative Ambiguity.” Cardozo Law Review 43, no. 3 (February 2022): 1035–1106.