FDR and the Supreme Court

Backing the President's Court Proposal
Robert M. La Follette, U.S. Senator, Wisconsin

Broadcast Over NBC, February 13, 1937

1. Last evening Governor Landon was scheduled to speak against the President's judicial proposals. For some reason Mr. Landon failed to lead the attack.

2. Was it because he was advised by the Republican Party chieftains that it would be better strategy for them to rely on the reactionary Democrats to carry the brunt of the opposition?

3. Or was this sudden change of plan due to the many things which Lincoln had said against the arbitrary power of the Court which made a celebration of his birthday a poor occasion for attacking the proposals of President Roosevelt, another great leader in the long struggle to make government serve the interests of all the people?

4. You remember what Lincoln said in his first inaugural. I quote in part: "... the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

5. Does Governor Landon or anyone else doubt that if the wise Lincoln had had the chance, he would have sought to reverse the Dred Scott decision by increasing the membership of the Supreme Court instead of having it reversed by four and one half years of Civil War?

6. Do not be misled. The same forces which opposed the President in November are opposing him now. For strategic reasons other leaders will doubtless be chosen. As in the legislative battles upon New Deal legislation in past sessions of Congress, Democratic reactionaries will be relied upon to lead the fight. But the same basic issue is at stake. It is raised because the President and the Congress are determined to carry out the mandate of the November election and to restore the Constitution to the people and to prevent the further abuse of judicial power.

7. The Founding Fathers were firm believers in a system of checks and of balances: They believed in the separation of powers, but there is no evidence that they believed in the uncontrolled supremacy of any one of the three great branches of government over the other two. "It must be remembered," Mr. Justice Holmes said, "that the legislatures are ultimate guardians of the liberties and welfare of the people in quite as great degree as the courts."

8. Article I of the Constitution specifically provides that "all legislative powers herein granted shall be vested in the Congress of the United States." The Founding Fathers never dreamed that legislative policies adopted by the Congress in carrying out powers clearly delegated to it were to be subject to a rigid judicial review amounting to a judicial veto. Proposals to give the Supreme Court even a limited veto power over legislation were rejected by an overwhelming vote in the Constitutional Convention.

9. There is considerable conflict among historians and jurists as to whether the power asserted by Chief Justice Marshall in the famous case of Marbury v. Madison to refuse to enforce acts of the Congress on grounds of unconstitutionality was not itself an act of judicial usurpation. I hope that the reactionary Democrats who slander his memory by calling themselves "Jeffersonian Democrats" will not forget what Thomas Jefferson said. He did not mince words, when he wrote:

   It has long been my opinion, and I have never shrunk from its expression, that the germ of dissolution of our Federal Government is in the judiciary—the irresponsible body working like gravity, by day and by night, gaining a little today and gaining a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped.

10. The storm of protest rose so high that never again in his lifetime did John Marshall dare to apply his new doctrine—and even suggested himself that Congress be given power to overrule Supreme Court decisions. The doctrine did not appear a second time until over fifty years later when another Chief Justice applied it in the Dred Scott case to plunge the North and South alike into the War Between the States and bring upon the South the shameful terrors of the Reconstruction period. And when the Court asserted the power the third time in the Legal Tender cases after the War, President Grant appointed two new justices, packed the Court if you will, and the Court reversed its own decision.

11. The Founding Fathers, the generations who built the spiritual and material foundations of this country, were opposed to judicial usurpation and refused to regard the Supreme Court as sacrosanct. The views of those who framed the Constitution about the proper exercise of judicial power have been maintained throughout our history by liberal leaders including Jefferson, Jackson, Lincoln, Theodore Roosevelt, and my father.

12. The idea of an unchecked supremacy of the Supreme Court has been built up only over the last forty years. It has been built up by corporation lawyers of the Liberty League ilk who have tried in the Court to counteract the reforms, like popular election of Senators, which are designed to make the will of the people the law of the land. It has been indoctrinated in our schools and in our thinking with the same conscious direction as the propaganda of the public utilities. If the Congress continues to acquiesce in such a pernicious doctrine, the Congress will be guilty of abandoning its constitutional rights and duties. The Constitution provides for a separation of powers, not for a judicial supremacy. The idea of judicial supremacy is not found in the Constitution or the writings of the Constitutional fathers. It is an idea of smart lawyers who, beaten in the Congress, have sought for their own advantage to twist and distort the Constitution ever since its adoption.

13. A remoulding of the doctrine of judicial supremacy to restore the balance of power among the three coordinate branches of government will be a return to rather than a departure from fundamental constitutional principles. The Supreme Court like the Congress should reign under and not over the Constitution.

14. I believe in a government of laws and not of men. But when the validity of our laws depends upon the whim and caprice of five out of nine fallible men, when a majority of the Court is accused by Justice Stone, joined by other minority members equally devoted to the Constitution, of adopting "a tortured construction of the Constitution," of reading their own "personal economic predilection" into the fundamental law of the land, government by the judiciary becomes a government of men and not of laws.

15. A beautiful and historic example is what happened to minimum wage legislation. It has been before the Court three times. On the basis of the recorded votes of the individual Justices there have been seven who voted in favor of its constitutionality and six against its constitutionality. Yet the legislation was invalidated simply because a bare majority of the particular set of Justices who happened to be on the Court at the time was opposed to that kind of legislation. Congress wanted it; the people wanted it; seven out of thirteen Justices wanted it. But the other six did not. So the law went into the ash can. If that is not government by men I would like to know what is.

16. Even the Republican Party refused to defend such a flagrant act of judicial usurpation. Ten days after the Supreme Court's decision arbitrarily brushing aside the New York Minimum Wage Act for women, the Republican Party solemnly pledged itself to support state minimum wage legislation for women and solemnly recorded its belief that such legislation is within the Constitution as it now stands. This is one more public recognition of the fact that our Constitution is what the Justices choose to make it.

17. Thus it is not the Constitution but the decision of a majority of the Justices which stand in the way of necessary legislation regarding labor, agriculture, finance, and the conservation of our human and material resources.

18. Congress, no less than the Court, is charged with the duty of protecting and defending the Constitution. If it is the judgment of the Congress that powers should be given to the Congress not already conferred upon it, the Congress must seek those powers by amendment. But if in the solemn judgment of the Congress those powers are already vested in it by the Constitution, it is the constitutional duty of the Congress, as a coordinate and independent branch of the Government, to take such steps as may be within its competence to exercise those powers. Congress cannot disturb a decision of the Supreme Court in a particular case, but Congress is not bound to submit to interpretations of the Constitution which deny to Congress its constitutional rights.

19. The Founding Fathers provided checks upon the executive and checks upon the Congress, and it cannot be assumed that the judiciary was to be free from all restraint. Impeachment is not the sole check.

20. No jurist has ever questioned the expressed constitutional right of the Congress to determine the number of Justices who shall make up the Supreme Court of the United States. That is the check of joint Congressional and Presidential action which the constitutional fathers with almost prophetic foresight provided to' prevent the arbitrary construction of the popular will by a judiciary which has lost touch with the needs and aspirations of the people. The time and manner of the exercise of that. check is a matter to be determined by the Congress responsible to the people of the United States.

21. The proposal of the President is nothing more nor less than a call to Congress to exercise its power under the Constitution to prevent the majority of the Supreme Court from thwarting the popular will.

22. Those who are opposing the President in this struggle rise to sanctimonious heights and brand as irreverent any attack on the Supreme Court. Our Founding Fathers never intended the Supreme Court to be the dictator of this nation. Not a word in the Constitution sanctions it. But when the Court substitutes for the will of the people of this country its own will; when it supplants the prevailing economic theory with its own smug theory of days gone by; when it decrees that it is beyond the power of the people to meet the national needs-then it has become a dictator and we have succumbed to a Fascist system of control which is inconsistent with fundamental principles upon which our government is founded. If it is irreverent to attack that dictatorship, then I am irreverent and every citizen who believes in true democracy should be irreverent.

23. Despite what the Economic Royalists, the Liberty League Lawyers and their Bar Associations, may say, there is a single vital question in this controversy: That question is whether when a handful of judges exceed their lawful authority by elevating their own personal opinions concerning economic or social policy above the Constitution of the United States, Congress shall exercise the check the Constitution gave Congress to meet such a situation.

24. The issue is between special vested interests represented by an economic theory of days gone by on the one hand and the will of the people to govern themselves on the other. When a judge sets himself athwart the fundamental needs of the present, in defiance of his duty to his high office, what are we to do? Are we to sit supinely by and see our democratic processes paralyzed and our Constitution discredited as a workable institution in the modern world?

25. Smart Liberty League lawyers would have the people believe that the President would destroy the Court as an institution. A moment's reflection makes clear that his proposal is the farthest from that. It is merely an effort to make the Court responsive to the will of the people. It preserves the Court; it does not destroy it. It is a bold and courageous endeavor to make the Court useful in the forward march our economic and social development.

26. There is a lot of talk of the President "packing" the Court. Let's not be misled by a red herring. The Court has been "packed" for years—"packed" in the interests of Economic Royalists, "packed" for the benefit of the Liberty Leaguers, "packed" in the cause of Reaction and Laissez-faire.

27. Let's be frank about this matter. The vested interests have for years prevailed in selection of judges. Under our form of government the will of the majority should prevail. If the majority of the people want Progress, they should have it.

28. November 3rd last made it clear and unmistakable where the vast majority of the people stand. They want to be free from the shackles of vested interests. They have rejected the Economic Royalists. In the words of Lincoln, they want a government of the people, by the people and for the people. They cannot have it if the Supreme Court places itself above the Constitution and arrogates to itself legislative functions. One clear way in which they can have their will of last November expressed is to have the Congress "unpack" a Court which has long been "packed" by the forces of Reaction.

29. A Congress which fails to "unpack" the Court has a short memory and is unresponsive to the voice of the majority. A Congress which fails to "unpack" the Court is allowing the Economic Royalists to rule this country with a Court "packed" against the people. This condition is intolerable. So long as the Court is "packed" against the people, the will of the majority cannot prevail. We then have not democracy but the worst form of dictatorship.

30. I think our experience has demonstrated that the average judge even before he reaches the age of 70 is likely to lose touch with the problems of the working world and to find it difficult to abstain from reading into the Constitution his own particular social and economic views. But there is no question that that danger is much greater in the case of judges who have passed the allotted three score years and ten.

31. The Constitution was drafted by men whose average age was in the 40's. It was designed to govern a nation in which the active work and struggle is carried on by men and women from twenty to sixty. It cannot be expected to work as a living guide for this active world while it is interpreted by men of seventy—a whole generation removed from the men and women in the front line of life.

32. Chief Justice Taft in 1912 suggested the advisability of compulsory judicial retirement at 70. Chief Justice Hughes, in 1928, suggested compulsory judicial retirement at 75. Many universities require teachers to retire at 65 or 70. Most corporations retire their executives in their sixties and retire their workers, without pensions, between 40 and 50.

33. The Constitution does not allow the Congress to provide for compulsory retirement at 70. But it does permit the Congress to provide for the appointment of new justices so that the court may, not be dominated by men long out of contact with the immediate affairs and vital concerns of the working world.

34. The President's proposals are certainly moderate and reasonable. Had such proposals been made by a Harding, a Coolidge, or a Hoover, their motives would not be suspect. But the reactionaries contend that President Roosevelt has an evil motive and a sinister purpose in this as in everything else he has proposed for the good of the people. These critics deliberately conceal the fact that even if none of the Justices resigns—and none is obliged to resign—President Roosevelt would appoint only six out of fifteen justices and the new justices would still form only a minority of the Court. There would still be nine justices, seven of whom were nominated by Republican Presidents and two by a former Democratic President. Those who say these proposals would make the Court subservient to the wishes of President Roosevelt are really questioning the integrity and independence of Justice Brandeis, Justice Stone and Justice Cardozo.

35. Beware of those who declaim so vehemently about an independent judiciary, for they are really concerned in having a judiciary subservient to their own idea. And don't be fooled by the crocodile tears of those who point to the careers of Justice Holmes and Justice Brandeis as reasons against the President's proposal, check back on those weepers and you will find that they cursed the opinions of Holmes while he lived and fought the confirmation of Brandeis to the last ditch.

36. It may well be expected that the new Justices will be more conservant and sympathetic with the needs of the present and future generations than some of the older Justices. And there is every reason to believe that they will he loyal to their oaths to support and defend the Constitution.

37. All three Justices now under 70 were appointed by Republican Presidents, two out of three of these have been consistently liberal in their interpretation of the Constitution. The conclusion is inescapable that while some men may grow old without losing touch with the pressing problems of the day, it is difficult for the average jurist, irrespective of prior political affiliation and economic beliefs, after he has passed three score years and ten to understand and appreciate the changed social and economic conditions with which legislators, if they are faithful to their trust, must deal.

38. Not a single appointment has been made to the Court since the Depression. Not one of the justices has had to struggle with the problems of a fundamental economic crisis more serious than war both in its immediate ravages and ultimate consequences. The President's proposal does not require Justices over 70 to retire. The President's proposal merely provides that a passing generation of Justices shall not be the exclusive guardians of a Constitution which belongs not to any one generation but to successive generations. The Founding Fathers expressly established the Constitution to secure the blessings of liberty not only to themselves but to their posterity.

39. The proposed reform is long overdue. It is regrettable that the reform was not inaugurated many years ago before the present critical situation arose. But the acuteness of the present situation is no excuse for inaction; it is added justification for immediate action. If the dangers of dictatorship and violent change are to be averted, the processes of democracy must not be arbitrarily obstructed by the personal economic predilections of Justices who untouched by the needs of the present generation regard them as vain and capricious.

40. As a time when the stress of economic conditions has imposed a strain which has brought the collapse of democratic governments in many lands it is vital that our own democracy should have the means which the Founding Fathers intended it to have, to meet those conditions. This is not a struggle between the President and the Court, it is a struggle between the Congress and the President on the one hand representing and responsible to the people, and on the other hand a Court, appointed for life, which has lost touch with the people.

41. I am as concerned about civil and religious liberties of our people as any man in the United States. I have fought for many lost causes, some bitterly and passionately unpopular. If a dictatorship should ever come to America, I shall not be on the side of the strong battalions. But no kind of legal guarantee has ever been able to protect minorities from the hatreds and intolerances let loose when an economic system breaks down. And in particular a Court which the people will rightly blame for their inability to solve their economic problems will never have the moral strength and prestige necessary to protect human rights in time of crisis and chaos. Revolutionary changes come to pass because of bad social conditions and the impotence of government to correct those conditions. Since a majority of the Court stands as a threat to the successful working of democratic government it obstructs progress and invites revolution.

42. For fifty years the corporation lawyers have been befuddling legislative problems with the meaningless jargon of their so-called constitutional law. They have. chopped up the plain and simple words of the Constitution. They have become rich and their clients have been protected in their special privileges. But where have they brought the people and the Congress of the United States that represents the people? Read for yourselves the majority and minority opinions of the Supreme Court on the problems which mean food, clothing, shelter and hope to the average man and woman of this country—and then after reading them suppose you try to tell a member of Congress what you think either Congress or the states can be sure they have power to do about any of these fundamental human problems.

43. I say, as one whose business it is to find out what can be done, that as the Supreme Court now interprets the Constitution it is utterly impossible for either Congress or the states to take action which is anything more than a legal gamble on minimum wages, collective bargaining, social security, crop insurance, soil erosion, unemployment relief, housing, the protection of our river valleys from floods or our national resources from a waste that spells ultimate national disaster. Even the Supreme Court itself, as the division amongst its justices shows, no longer knows what the Constitution means.

44. Any one who is not sticking his head in the sand knows perfectly well that we cannot hold our economic system together in such legal confusion. Only those who sit day after day at the focus of national problems know how dangerous are the forces of sectionalism and economic division which tug at us and how much more quickly great economic changes and great changes of public opinion come about in the modern world than they did in the world in which men now seventy lived their active life.

45. Never forget as you watch the ticker riding high that there are still millions of unemployed in this country, that we are having bigger strikes, bigger droughts, bigger floods, bigger agricultural, difficulties—all coming upon us faster and faster—than men of twenty years ago would even dream.

46. Intelligent statesmanship requires that we make every legitimate effort to settle those problems now.

47. Intelligent statesmanship must not even take the smallest risk that effective legal means to deal with these problems will not be found until three or four years or even ten years during which time the forces of reaction will fight, step by step, and state by state, every effort to get through a constitutional amendment.

48. Most of those who are urging or who are paying for propaganda to urge constitutional amendment as the only way of meeting these difficulties are those who before last November were talking about the sacredness of the Constitution and the sinfulness of amending it. Driven from that first trench by the vote of 27 million people in November, they are now back in their second trench urging amendment rather than the quicker ways of bringing justice to the people which are unquestionably available to the Congress and the President under the terms of that same Constitution.

49. The Constitution requires that an amendment be ratified by three-quarters of the states—each state having one vote. But never forget that the twelve smallest states in the nation—enough to block or delay amendment—can do this with only ten per cent of the population of the nation. You can be sure that the Economic Royalists are not forgetting the usefulness of that ten per cent.

50. I have no doubt as to the wisdom of the substance of the President's proposals. He has pointed out the only way in which the popular will may be translated into effective legislative action during the next four years.

51. Liberals—be realists—don't let a lot of professional legalists—paid to do the job—blind you to the woods while they are showing you the trees. Progressives who hesitate or divide upon this issue must assume full responsibility if the mandate registered by the overwhelming majority of the voters at the last election is thwarted.

52. For the long future I am in favor of the submission by this Congress to the people of an amendment which would give the Congress power to override a decision of the Court declaring any act of Congress unconstitutional so as to provide in future years a more certain mechanism of restraining arbitrary judicial action.

53. But that amendment must be in addition to the President's proposal for immediate action, by statute. While an amendment is taking its long and laborious course no man or woman who values the continuity of our democratic and legal traditions—no man or woman who realizes, the desperate necessity of making democracy work and work now—can stand idle and submit to the chaos of Judicial usurpation which it is within the constitutional power of the Congress to remedy.