FDR and the Supreme Court

Our Supreme Judicial Tribunal: Proposed Changes and the People
William E. Borah, U.S. Senator, Idaho

Radio Broadcast from Washington, February 1, 1937

1. In a free government, no public official, the records and policies of no public institution, should be regarded as exempt from searching consideration, or criticism at the hands of the people. Neither can infallibility be expected of any man, or set of men.

2. In considering the history, decisions and opinions of the Supreme Court of the United States, and in seeking to estimate its worth in the machinery and strength of our government, it would be unreasonable, if not absurd, to proceed upon any different theory. That the Supreme Court in its long history has erred I would be the last to deny; that it will err in the future, I entertain no doubt; that it has on some occasions felt the effect of mad party passions raging about it is probably true. But after all this. is admitted, when its worth is measured by the service it has rendered to the cause of human liberty, to the advancement of human happiness, and to the maintenance of a government of law rather than a government of men, that it stands among the foremost institutions of the world seems true beyond peradventure of a doubt.

3. The effort to establish and maintain an independent and uncontrolled judiciary long antedated the adoption of our Federal Constitution. The great desire to have a place in government where the humblest citizen might seek justice with no fear that his cause would suffer from the influence of political power was interwoven with the long struggle for Anglo-Saxon liberty.

4. Far back in English history, still read with unfailing enthusiasm, Sir Edward Coke, Chief Justice of the King's Bench, flung the laurels of a lifetime in the face of his King when the first Stuart bade the Chief Justice postpone consideration of a matter pending until His Majesty could make known to him the wishes of the crown. Since then, volumes have been spoken and written on this subject, and the victorious progress of the English-speaking world owes much to the success of this vital principle in free government.

5. But the action of Sir Edward Coke was as exceptional as it was courageous. There was yet a long contest ahead before the example he set could be brought to acceptance by those in power. One of the main questions settled by the English revolution of 1688 was that the people should have the right to appeal for protection to an independent tribunal of justice. Prior to that time the judges were subject to removal by the King. Under this power he took some of the keenest intellects and brightest minds of the English bar and made of them corrupt and willing instruments of oppression and injustice. Rather than to go before such a tribunal, Essex took his own life in the tower. Under this system Pemberton was appointed, that he might preside at the trial of Russel, and was then recalled because his instructions, though strikingly unfair, and partial, were not sufficiently brutal to satisfy his ruthless master who had given him for a time his polluted ermine.

6. Under such a system one of England's liberal statesmen, Sydney, was beheaded; freedom of speech destroyed, habeas corpus denied, and individual rights trampled under foot. So when the English yeomanry, the common people, drove their monarch from the throne, they wrote into the terms of the "act of settlement" that "judges' commissions be made during good behavior and their salary ascertained and established." This took it out of the power of the King to remove the judges and out of his power to impoverish them by with-holding their salary. This was the first decided step toward an independent judiciary, and it was not long until the great English orator could truly say: "Though it was but a cottage with a thatched roof which the four winds could enter, the King could not."

7. Thereafter, instead of Jeffreys denouncing and cursing from the bench the aged Baxter, instead of Dudley taunting and tormenting the New England colonists, instead of Scroggs and Saunders, subtle and dextrous instruments of tyranny, we have Somers and Holt, and York and Hardwick, and Eldon and Mansfield laying deep and firm the great principles of English law and English justice, principles which still guard the personal rights of men and women and in lands far removed from the place of origin.

8. Some one has said that everything good in the Federal Constitution is a thousand years old. One would not like to accept that statement in full. But many of the good and wise things in the Constitution are a thousand years old. Much that may be found in the Constitution with reference to the courts and the liberty, the rights, guarantees and privileges of the citizen are a thousand years old. A thousand years before we set about our task of writing a charter of government those without influence or political power well understood the worth, and often prayed and sometimes fought for a high-minded, humane, independent and just judge, whom neither fear, favor nor affection nor the hope of reward could bend from his course, as their only refuge against arbitrary power from the political side of the government. The huge volume of English history in which was to be found the long struggle for personal liberty and unbought and unpurchasable judges lay open before the framers, and from it they copied with copious hands. The urge of originality was not so strong with them as their desire for truth. The sacrifices and suffering there recorded they were determined should not be recorded again in our country by the American people.

9. They, therefore, copied into our Charter these rights brought from long years of experience and set up courts which they hoped, as Madison declared, would "consider themselves in a peculiar manner the guardians of those rights . . . that they will be naturally led to resist every encroachment upon rights stipulated for in the Constitution." In the brief time at my disposal I want to recall a few facts indicating how well the court has performed the part assigned to it by Madison.

10. When Madison, perhaps the most accurately comprehensive and dispassionate mind of his day, declared that the court would "be an impenetrable bulwark against every assumption of power in the legislative or executive," he was not reflecting upon the integrity or purpose or the patriotism of men who would occupy the Executive chair, or the want of ability or loyalty to American institutions of those who would make our laws. He was announcing a truth clear to him and as old as government and almost as unchanging and unchangeable as the ordinances of fate, that the political side of governments do not, and, in the nature of things can not, guard the personal liberty and individual rights of Citizens with that degree of vigilance which free citizens are entitled to enjoy and without which free government cannot exist. Faction and party zeal, debate and political ambitions, cannot hold the scales of justice in impartial hands or weigh either the charges or the evidence with unresentful judgment. The most enlightened political leaders and the most advanced of governments have utterly failed to wisely administer justice without the aid of independent and incorruptible courts. That has been true from Pericles to Washington, and from Washington to Roosevelt.

11. We need not travel outside our own history or seek examples outside our own country. From time to time the executive and legislative, or, in other words, the political side of the government, have disregarded or trampled under foot practically every guarantee found in the Bill of Rights. Under the Federalists' regime free speech, free press and free assembly, under laws enacted and passed by the Congress and signed by the President, were denied to the citizen. Men were charged with crime and thrown into prison for criticisms of public officials or the acts of government, and in language which the House of Stuart or the Bourbon kings would have scarcely regarded as offensive.

12. Under the Democratic administration which followed men were arrested without warrant, thrown into prison, denied counsel in violation of the plain provisions of the Constitution. Under the Republican administration which followed men were denied the right of trial by jury, and the right of free speech and free press were utterly ignored. In such instances the Supreme Court of the United States has, in the language of Madison, proved in every instance "in a peculiar manner the guardians of those rights."

13. But I claim for these facts nothing more than proof that in every free government courts removed from the turmoil and bitterness of politics are indispensable to the rights and liberty of the citizen, particularly the citizen who is without political influence or power. The experience of all history demonstrates this and common sense supports it. To reject, or even essentially modify, this great truth would present the most frightful and, at the same time, pathetic spectacle which the convulsions or decadence of nations affords—democracy on the back track.

14. It would be a serious error, if not a fatal mistake, to regard these questions touching the integrity of the Constitution and the independence of the court as party questions or to seek to treat them as such. If these are not governmental questions of concern to all people regardless of party, then there are no such questions. There are always those whose minds rise no higher than the level of party advantage who may contend these matters may be made party questions. But I believe them to be small in number and far more diminutive in influence. To assume, or to undertake to make it appear, especially in the light of American history, that any political party is the keeper of these heirlooms of democracy is too egregious for even the credulity of a political campaign.

15. Both the old parties have their records on this question and they are not records that one would wish to recall except to avoid in so far as we can mistakes in the future. Neither of the old parties has hesitated at different times to disregard the guaranties of the Constitution or to denounce and assail the court when its decisions failed to sustain their course. While the court, under the leadership of Marshall, was delivering opinions which laid the foundation for national power and which were afterward proudly accepted by an entire people, the court was being assailed and threatened with impeachment by the Democratic party then in power. Bills were introduced, designed to withdraw the jurisdiction of the court. At this time the court was criticized for ignoring state rights. In these days it is criticized because it does not wipe out state rights.

16. When the Supreme Court held that a citizen in private life could not be tried by a court martial and that every citizen accused of crime was entitled to his day in court, a perfect storm broke upon the court from Republican leaders. The Republican leader of Congress declared: "Whenever the decision of the Supreme Court in the judgment of Congress is subversive to the rights and liberty of the people . . . it is the solemn duty of Congress to disregard it." The leading Republican paper declared: "It is this view of the decision ignoring the vital interests of the government . . . that a reconstruction of the court looms up into bold relief." What had the court decided? Nothing more than that the plain provisions of the Constitution were binding upon the Congress, upon the Executive, and upon the courts. These were the grounds upon which party leaders thought proper to advise disregard of the Constitution and defiance of the court.

17. Experience teaches that it is difficult to set constitutional bounds to the action of a political party enjoying great political power or a political party not enjoying power and striving in desperation to secure it.

18. It seems unnecessary to recall more of these historic incidents relating to attacks upon the court because of decisions which afterward come to be looked upon and regarded as sound in principle and some of them as bulwarks of human liberty. There are other and numerous instances of this nature which I doubt not will come readily to the minds of my audience.

19. I make this comment, however, that it is a demonstrable truth, supported by a wealth of facts, that the Supreme Court, in instances too numerous to be recorded tonight, has thrown the shield of the Constitution about the rights of the citizen when all other appeals for relief have failed him. When war, passion, or mob passion or political zeal or selfish schemes have carried men beyond reason or justice, the court, when called upon, has interposed to avert great wrongs.

20. This is well illustrated by two recent cases: one where three ignorant, illiterate, impecunious Negroes, victims of mob passion and official cowardice, at last found safety and life in the order of the Supreme Court. The other, where a babbling fool, preaching destruction of the Constitution and the court as the tools of capitalism, found liberty under the terms and by authority of the very things he would destroy.

21. By reason of certain decisions, the Supreme Court is again under severe criticism: Again, the political side of the government feels that the court is in great error. A study of the decisions to which opposition has been raised will disclose that, while a number of important matters have been passed upon, the dominant, overshadowing constitutional question, one which will return again and again, involves the distribution of power between the state and the Federal government. It was this question, as you know, which came near dissolving in failure the convention which framed the Constitution. It was this question which, in the early part of our history, divided our people in a long and bitter controversy. And it was this question which entered so largely into that controversy which finally drenched the nation in fraternal blood.

22. It is back with us again, augmented and complicated by reason of the problems growing out of our social and industrial development during the last fifty years. To use a somewhat worn and too familiar sentence, we are again at the crossroads as to this problem which, conjure it as we will, like Banquo's ghost, returns again and again to its place at the feast.

23. The great problem now is: Do modern conditions make it imperative that the Federal government have greater, if not complete, control over most of the internal affairs of the states? That we have, in our legislation, not only since this depression, but for the last forty years, been crowding more and more upon the undoubted internal affairs of the state can hardly be doubted. And it has seemed that the court has gone to the utmost limit in sustaining some of these measures. That it has felt, however, compelled to hold that Congress has at times transgressed the plain terms of the Constitution has been no surprise to those who still believe in our dual system of government.

24. In the case involving the validity of the National Recovery Act, this question was one of the determining factors. The court was unanimous—conservatives and liberals, Republicans and Democrats—in holding that Congress had gone an arrow's flight beyond the terms of the Constitution. This unanimous opinion is difficult to explain away. He would be a bold liberal who would declare that Justice Brandeis is not a liberal, a humanitarian, and profoundly learned in constitutional law. He has said on one occasion: "All rights are derived from the purposes of the societies in which they exist, above all rights rises duty to the community." Justice Cardozo, whose liberal views and monumental knowledge of law would hardly justify his being placed among those who are not abreast of the times, indicated in his concurring opinion that the act under consideration was something in the nature of a legal riot. I take the liberty of mentioning these Justices personally because of the general charge that the court, while honest and capable, is suffering from a case of arrested development and plagued with the views of ancient days.

25. But is this not a wholly different matter than the failure of the court to do its duty? Have we not in good conscience arrived at the hour when we should consult a higher authority than courts or Congress or executive—the people, the final authority upon this question of the distribution of power? It seems to me that a question has arisen which only the people have the authority or the right to settle. Should there be a redistribution of power between the state and the Federal government? A question of this nature under present conditions cannot be put at rest by decisions from time to time upon particular statutes—it is more than a matter of judicial construction. It is not for us to urge, or connive, at the courts, through strained and doubtful construction, filching from the people power which the people have not granted.

26. If the people desire that the Federal government shall have control over their local affairs, it is for the people to say so. If the people desire to leave to Congress the unlimited discretion as to the things for which it shall appropriate money and the things it shall do with the money, it is for the taxpayers to say so. The court has no right to speak for them. What question is of greater concern to the people or comes more into their daily lives than the question of how much of local self-government it is safe and wise to surrender? How much greater authority shall there be for establishing bureaucratic control over everything that touches our daily living? Those who feel the Federal government should be given full control over our local affairs have open before them a tribunal from which there is no appeal, and, under our system, a tribunal with exclusive jurisdiction.

27. In a few days we will pause in our deliberations in the Senate long enough to read Washington's farewell address—an address as fresh and up to date in many respects as if it had been written yesterday. His views will always be relevant so long as democracy is relevant. I quote: "If, in the Opinion of the people, the distribution, or modification, of the constitutional power be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates—but let there be no change by usurpation," either by Congress or the Executive or the courts, or by all of them combined.

28. In conclusion, many proposals are being made relative to our supreme judicial tribunal—all the way from designating the number of judges required to declare an act of Congress unconstitutional to that of withdrawing from the court jurisdiction entirely. I presume some, or all, of these proposals will come along for discussion and consideration, and there is no reason why they should not. In my opinion, there is every reason why they should. By all means let the subject in all its ramifications and implications be discussed in the Congress and before the people. That is the way. and the only proper way, for democracy to settle its problems. And when our legislative body shall have adjusted the court problems to the satisfaction of all, they may then rest from their labors. Besides, there is nothing more surely needed in this country, in my opinion, than a universal constitutional baptism. If our institutions are not fitted to serve the tranquility and welfare of our. people under present conditions, we surely should know it. And I know of no way to arrive at the truth of these things so well and so effectively as general, thorough debate. But any plan which undertakes to accomplish any redistribution of power between the state and the national government, without the full authority of the people, should be regarded as a mistake, a mistake that there is no reason for making. That is peculiarly the people's problem. And, under every rule or principle known to democracy, they, and they alone, should settle it. This purloining of constitutional power from the state by the Federal government, beginning far back in the past, has passed beyond all reason, and, before the final pillage takes place, those who are most deeply concerned should be heard.

29. "The present day," Metternich was wont to say, "has no value for me except as the eve of tomorrow, it is with tomorrow that my spirit wrestles." Disregard of today can have no place in the affairs of a democracy. We must meet each day's demands and omission to do so is at our peril. But disregard of tomorrow is scarcely less dangerous. To establish the precedent of making vital changes in our national charter without the authority of the people expressed in the manner pointed out by the Constitution may seem expedient for today, but it may torment us on many a tomorrow. We may not always have in power those who use the powers of government in the interest of the people. It has been stated by high authority that the Federal government now has the power and the governmental machinery which, in the hands of those with evil purpose, could destroy the rights of the people. Who knows when they will arrive?

30. It has been correctly said that the laws which the Assembly of France passed in the name of humanity and freedom, Napoleon III used to put the members of the Assembly in jail. The power which the German people gladly gave to Bruning in a good cause, his successor made use of to rob them of the last vestige of self-government and of every semblance of liberty.