Whitney’s counsel anticipated that the trial record could be viewed as providing scant basis for the Supreme Court’s assertion of federal question jurisdiction. The brief, accordingly, emphasized the “certificate” – the stipulation of the parties and order of the California intermediate court of appeal – in establishing that jurisdictional basis:
In the District Court of Appeal and also upon her application for leave to appeal to the Supreme Court of California, Miss Whitney contended that the statute “and its application in this case is repugnant to the provisions of the Fourteenth Amendment of the Constitution of the United States . . . . ” (Stipulation and addition to the record, filed Dec. 16, 1924). That contention “was considered and passed upon” by the District Court of Appeal – the highest California Court to which appeal was permitted – and was overruled by that court (Order amending record).[97]
Two years after the Court had agreed to review Whitney v. California, oral arguments were finally heard on October 6, 1925. From the tenor of the Justices’ questions, they appeared most concerned over the precise character of Anita Whitney’s involvement with the Communist Labor Party of California. They closely questioned counsel as to whether Whitney had attended party meetings after the Loring Hall organizing convention, and whether she had put her weight behind any syndicalist proposal or action. Given the Court’s parsing of the merits, it must have been a surprise when its decision was rendered thirteen days later. The Court’s one-line per curiam opinion dismissed the case for want of jurisdiction. [98]
However bleak things looked at that time, Anita Whitney still had a chance in the court of public opinion. Talk of pardon was everywhere in the California air, and an “Anita Whitney Committee” was soon formed to rally public support. But Whitney would have none of it. “I’m not going to ask for a pardon,” she told an Associated Press reporter. “If the Governor is disposed to pardon anyone, let him liberate the poor men who are now imprisoned for violation of this same law and whose guilt may be less than mine.” In any event, Governor Friend W. Richardson released a 13-page statement denying the pardon. For the governor, the simple truth was that Anita Whitney had assisted the Communist Labor Party, an organization that had engaged in “sedition and disloyalty amounting to almost treason.” [99]
