In the 1950 case Joint Anti-Fascist Refugee Committee v. McGrath, Attorney General, et al., the U.S Supreme Court ruled on whether or not it was constitutional for the Attorney General to list certain organizations as "communist" without giving them a chance to defend themselves. The plaintiffs were three organizations that had been listed as communist by then-Attorney General Tom C. Clark and argued that this violated their Fifth Amendment rights of due process because they weren't given an opportunity to challenge these designations before they were made public. In a complex decision with no majority opinion, six justices agreed in various ways that some form of hearing should have been provided before the groups were publicly designated as subversive and potentially disloyal. However, there was disagreement about what kind of hearing would be sufficient under these circumstances.

In the dissenting opinion for Joint Anti-Fascist Refugee Committee v. McGrath, Justice Robert H. Jackson argued that the majority's decision was an overreach of judicial power and a violation of separation of powers principles. He contended that it is not within the Court's authority to interfere with executive decisions unless there is clear evidence of constitutional or statutory violations, which he did not believe were present in this case. Furthermore, he expressed concern about potential negative implications on national security if courts could easily overturn executive actions related to foreign affairs and internal security matters based on subjective judgments about their fairness or wisdom. In his view, such interference would undermine political accountability by allowing unelected judges to substitute their judgment for those elected officials who are directly accountable to voters.