Precedents for the Court Plan

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Robert J. Bulkley
U. S. Senator, Ohio
Over WJSV, Feb. 26, 1937

Publishing Information

The President's plan for the reorganization of the judiciary is but the revival of a plan suggested by Justice McReynolds some years ago when he was Attorney General of the United States. It will probably tend to relieve congestion in the courts and tend to provide among the judiciary a newer and fresher point of view.
The greatest objection urged against the plan is its application to the Supreme Court of the United States, where it would immediately authorized the appointment of six additional Justices. This was not a part of the McReynolds plan. It may well be doubted whether an increase in the membership of the court would tend to expedite its work. It can hardly be doubted that such an addition would give to the court a younger point of view. The desirability of compulsory retirement at some fixed age is generally accepted—as in the Army and Navy, and other branches of the government service, and in railroading and industry. There are individuals who can continue to do excellent work up to the age of 80 or even 90 years, but these are the brilliant exceptions which do not disprove the rule.
But these considerations do not touch the point of great-est controversy over this proposal, which is that six additional Justices appointed by the present President and confirmed by the present Senate would certainly change the complexion of the court by creating a liberal rather than a con-servative majority. This is opposed on the one hand as an attempt to pack the court, and on the other hand is commended as a means of unpacking the court.
Whichever viewpoint we take, there can be no doubt about the importance of the change which would be effected, that importance being due primarily to the power exercised by the Supreme Court to determine finally the validity or invalidity of Acts of Congress.
Our government consists of three branches—the legislative, executive and judicial—equal and independent of each other, but subject to checks and balances. The Constitution provides that the Chief Executive may veto an Act of Congress, and further provides how a vetoed Act may become law by a two-thirds majority of both Houses, notwithstanding the objection of the President.
The Constitution does not provide that the Supreme Court may veto or pass upon the validity of an Act of Congress, and proposals made in the Constitutional Convention to write into the Constitution such an authority to the Supreme Court were definitely voted down. How then did the Supreme Court get the right to be the final arbiter of the validity of an Act of Congress? It took it. It simply asserted it, and the assertion has been acquiesced in for more than a hundred years. It has been supposed that the courts have this power by necessary implication because of the necessity of having some check against the Congress passing an act which it had no right to pass under the powers delegated to it by the Constitution. It is strongly urged in some quarters that this review by the courts is unnecessary since the Congress, equally with the Supreme Court, is charged with the duty of conforming to and supporting the Constitution, and so is the Chief Executive, whose approval is necessary to legislative acts except in the case of measures passed over his veto by majorities of two-thirds. Whether necessary or not the prerogative of the Supreme Court to hold finally that an Act of Congress is unconstitutional has been recognized and it would probably take a Constitutional Amendment to change it now. And so the Supreme Court has a check upon Acts of Congress, not by reason of any express provision of the Constitution, but by its own assertion of that power. Does the exercise of this power by the Supreme Court destroy the independence of the equal and coordinate legislative branch of the government? It does not so long as the power of the court to nullify an Act of Congress is exercised only where the unconstitutionality of the statute is clear beyond doubt. But the Constitution itself is not clear in all detail. It is a broad outline of a governmental plan to be carried on and developed by each generation to meet the needs of changing times. It has been regarded as a living and growing instrument, flexible and adaptable to all conditions that may arise. Powers not expressly enumerated in the Constitution have been implied and exercised by the Congress as well as by the courts an example being the right of Congress to control industrial and agricultural prices by means of a protective tariff, which has been sustained as incidental to the right of the government to derive revenue by taxes on imports.
I have said that the independence of the legislative branch is not in any fair sense impaired by the judicial assertion of authority to declare congressional acts unconstitutional so long as such decisions are confined to congressional acts which plainly contravene the Constitution. For example, there could be no doubt that it would be unconstitutional for Congress to pass an Act to establish a national religion, or prohibiting the free exercise of religion, or to impose any religious test for the holding of public office. But the Supreme Court, in its assumed guardianship of the Constitution, has not the slightest right to use this power in order to impose its own ideas of public policy. When the Supreme Court exercises the right to nullify an Act of Congress because of the preconception of its members on questions of public policy, then indeed has our form of government been changed. How great may be the court's power? Chief Justice Hughes has said: "We are under a Constitution, but the Constitution is what the Judges say it is."
Fortunately the Supreme Court has repeatedly disclaimed the intention to pass upon questions of policy, recognizing that the Congress is solely responsible for policy determination. The court professes to declare unconstitutional only such Acts of Congress as clearly conflict with the Constitution. But Judges are human, and their consciences must be to some extent influenced by their respective backgrounds and predilections. This difficulty is recognized within the court itself. Take as an example the Hoosac Mills case, holding the AAA unconstitutional. To come to the conclusion that this decision was based upon the majority's views of public policy, we do not need the support of any outside critic of the court. We may decide for ourselves whether or not we agree with the criticism expressed by Justice Stone in his classic dissenting opinion, from which I quote:
"That the governmental power of the purse is a great one is not now for the first time announced. Every student of the history of government and economics is aware of its magnitude and of its existence in every civilized government. Both were well understood by the framers of the Constitution when they sanctioned the grant of the spending power to the federal government, and both were recognized by Hamilton and Story, whose views of the spending power as standing on a parity with the other powers specifically granted, have hitherto been generally accepted.
"The suggestion that it must now be curtailed by judicial fiat because it may be abused by unwise use hardly rises to the dignity of argument. So may judicial power be abused. 'The power to tax is the power to destroy', but we do not, for that reason, doubt its existence, or hold that its efficacy is to be restricted by its incidental or collateral effects upon the States.***
"A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent expenditures which, even if they could be thought to effect any national purpose, would it be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, 'to obliterate the constituent members' of 'an indestructible union of indestructible States' than the frank recognition that the language, even of a Constitution may mean what it says: that the power to tax and spend includes the power to relieve a nationwide economic maladjustment by conditional gifts of money."
I agree with Justice Stone's opinion, in which Justices Brandeis and Cardozo joined. Where then do we arrive? We have seen that the Constitution clearly sets forth the checks and balances between the legislative and executive departments, but is not so clear as between the legislative and judicial. The judicial branch has presumed and exercised the power to review the Acts of the legislative not by authority of any words of the Constitution but by judicial implication. It has actually and effectively enlarged this presumption to include the right to protect the country against the possible unwisdom of Congress. Says Justice Stone: "So may judicial power be abused." In our government of checks and balances is there no check or balance against this assumption of judicial supremacy?
The Chief Justice believes that the Constitution is what the Judges say it is. What then becomes of the theory that our three branches of government are independent and equal, when the judicial branch takes unto itself the power to review and to veto the work of the legislative?
Are those of us who resist complete judicial supremacy to be accused of trying to change our form of government? Rather we are trying to restore our form of government. We are trying to check the Supreme Court in doing what itself has held that it has no right to do.
Do we attack the independence of the judiciary? All of the judiciary, including Supreme Court Justices, have always been appointed by the President by and with the advice and consent of the Senate and it has never heretofore been suggested that this method makes Judges subservient to President or Senate. Their independence has been protected by the constitutional provisions that they shall hold office for life, and that their salaries shall not be reduced. No change in these safeguards to the independence of the judiciary has been suggested, nor would it be possible under, the Constitution. It is well to remember these plain facts through all the welter of irresponsible accusations about an attack on the independence of the judiciary.
The number of members of the Supreme Court has been changed several times before. Those who feel that the precedent of enlarging the court would lead immediately to further enlargement and loose dealing may take comfort in the fact that the previous precedents have had no such effects. There has been no change for nearly 70 years.
It should be frankly recognized that the enlargement of the Supreme Court is a serious step, and one that should not be taken without good reason, but those who justify the Supreme Court in assuming a power not granted by the Constitution and support the court in using that power by way of legislative veto, and yet would deny to Congress the right to recheck the Court by the exercise of a power clearly and definitely within its constitutional rights, should stop talking about the independence and equality of the three branches of government, and frankly take the position which they are really supporting—that of unqualified judicial supremacy.
In the formative period of American Constitutional law, the great Chief Justice, John Marshall, developed the doctrine of implied powers and put vitality into the strip of parchment on which the nation was rounded. He transformed the words of the Constitution into authority and made them spell national power. He found the organic law full of silences which he made articulate, he gave the Constitution resiliency and made it what it is claimed to be, the supreme law of the land. Today, in this period of transition, when our people are emerging from a catastrophe in many ways as serious, it is vital that the Supreme Court must be in harmony with the times.
A Constitution is not an idol to be worshipped; it is an instrument of government to be worked. If in the words of John Marshall it "is to endure for all ages to come, and consequently, to be adapted to the various crises in human affairs;" if the Constitution is, as Woodrow Wilson once declared "the vehicle of the nation's life," it must be because the Supreme Court makes it so. Our present Supreme Court has nullified important Acts of Congress because a majority of the judges, conscientiously differing with the economic and social theories underlying recent legislation, have insisted on an antagonistic approach to the problem of constitutional interpretation.
I reaffirm my faith in the Constitution of the United States as a living and growing instrument of government, adaptable to new times and new needs. I reaffirm my faith in the President of the United States, and in Franklin D. Roosevelt personally—not a dictator, but a great democratic leader at a time when the country has been crying for leadership. I reaffirm my faith in the Congress and in its responsibility and ability to protect the liberties of the people. I reaffirm my faith in American democracy and the objectives which it so plainly expressed last November.