with whom
Mr. Justice Black and Mr. Justice Douglas join, dissenting.I agree with my Brother Douglas that due process of law requires that this contempt be tried before a different judge.
This Court has recognized that the power of a judge to impose punishment for criminal contempt without notice or hearing is:
“capable of grave abuses, and for that reason [the Court has never given any] encouragement to its expansion beyond the suppression and punishment of the court-disrupting misconduct which alone justified its exercise.” In re Oliver, 333 U. S. 257, 274.
The Court has also “marked the limits of contempt authority in general as being ‘the least possible power adequate to the end proposed.’ ” Ibid., quoting Anderson v. Dunn, 6 Wheat. 204, 231.
I would hold, therefore, that the Constitution forbids a judge to impose punishment for such contempt without notice or hearing, except when (1) the contempt creates such “ ‘an open threat to the orderly procedure of the court . . . [that if] not instantly suppressed and punished, demoralization of the court’s authority will follow,’ ” In re Oliver, supra, at 275, quoting Cooke v. United States, 267 U. S. 517, 536, and when (2) “no explanation could mitigate [contemner’s] offence or disprove the fact that he had committed such contempt of [the court’s] authority and dignity as deserved instant punishment.” Ex parte Terry, 128 U. S. 289, 310.
The power to punish in so summary a fashion is, as the New York Court of Appeals recognized, fraught with danger, particularly when the alleged contempt consists of a charge of wrongdoing against the very person sitting in judgment of the contempt.
*604Mr. Justice Douglas has convincingly demonstrated that the contempt charged here was not such an open threat to the orderly procedure of the court as to necessitate instant punishment, that an explanation or the introduction of evidence could have mitigated or disproved the offense, and that it consisted essentially of a charge of wrongdoing against the very person sitting in judgment of the contempt.
I conclude, therefore, that this contempt could not constitutionally have been tried summarily,* and that it should have been tried before a different judge.
There may well be instances of disruption where the trial judge correctly feels that some immediate action is necessary to restore order but that a full, immediate civil or criminal contempt proceeding might cause undue prejudice against the defendant in the main trial. In attempting to accommodate these conflicting demands, the trial judge should have some latitude, limited, of course, by the overriding principle of the law of contempts that the power exercised be “the least possible power adequate to the end proposed.” Anderson v. Dunn, 6 Wheat. 204, 231; In re Oliver, 333 U. S. 257, 274.