Storm Over the Supreme Court

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George R. Farnum
of the Boston Bar; Former Assistant Attorney General of the United States
Young Men's Republican Club, Melrose, Mass., March 1, 1937

Publishing Information

The radical proposals, sprung with dramatic suddenness on a startled public, by the President have set the stage for what promises to be one of the decisive battles of American political history. American constitutional democracy is facing a grave crisis. The American people have abruptly arrived at a fork in the road. In one direction lies a continuance of those methods of free government with which they have been long acquainted; in the other lies unexplored territory. The hour calls for a fateful decision—perhaps once for all for there may be no turning back after the way is chosen.
"The Constitution," as Walter Lippmann has recently asserted, "is undoubtedly the greatest attempt ever made consciously by men to render popular rule safe for the nation as a whole, the local community, and the individual." In literal fact, its draftsmen were a representative group of the ablest and most disinterested men that America has ever produced, presided over by George Washington, probably the greatest man of the eighteenth century. An experiment it doubtless was but, as Justice Holmes once added, "as all life is an experiment." It has, however, in the century and a half since its adoption, proved itself to be a transcendent experiment. Upon its foundation thirteen weak and impoverished States, falling apart from the loose and rotting bonds of the Revolutionary Confederation, were welded into what became a great nation. It successfully met the recurrent hazards in that nation's history and stood the stress of every political vicissitude through the years that subjected its people's political philosophy and their conceptions of free government to many grave and critical test. It has, moreover, been a controlling factor in their social, political and economic life from the beginning.
The guardian of the Constitution, the interpreter of its letter and the expounder of its spirit—its "living voice" as Lord Bryce once put it—is the Supreme Court of the United States. To the work of that unique tribunal we probably owe in no small measure the actual preservation of the union—and in no slight degree the preservation of our rights and liberties under the American System. For a hundred and fifty years it has been engaged in the great and difficult task of interpreting constitutional prescriptions, adapting them to the rapid changes in the fundamentals of American life; adjusting the balance between individual rights and community needs and reconciling the competing claims of State authority and National power.
The Court has the singular distinction of being the pioneer authoritative faculty of political economy in history and has not been ineptly described by a great scholar as "not merely a tribunal where the controversies of men are resolved" but "also a legislature in which the life of a nation is given form and color." Through the long, eventful years of its strenuous existence, its work has naturally reflected the political philosophy and social outlook of the constantly changing personnel and has necessarily reflected the influence of the impact of society with alternating periods of war and peace and with the recurrent cycles of prosperity and depression. While designedly the conservative organ of the government, it has by no means been irresponsive to the influence of that public opinion which was based on something more substantial than transient emotions or prejudices.
In the wake of the New Deal came days of peculiar travail and tribulations for the Court. In its attempt to cope with the economic collapse and to solve the country's troubles by national action, the Administration embarked on a legislative and administrative program of unprecedented scope and of a highly experimental and radical character. As a result there was imposed on the Court the duty of passing on questions of baffling complexity and the task of adapting the Constitution to novel situations and emergency conditions without impairing its fundamental integrity. Under the circumstances, and in its impact with constitutional barriers, it is not to be wondered at that a substantial part of such a formidable program, embodying statutes to a large measure hastily evolved—"crudely drawn" as the President himself described one of them—failed to pass the traditional tests.
It was a foregone conclusion that such a law as the N. I. R. A. —particularly as it came to be interpreted and applied by the Administration—could not be legally justified and when the day of reckoning came, it failed to enlist the constitutional sympathies of a single member of a Court, which included such tolerant and liberal thinkers as Justices Brandeis, Cardozo and Stone. It may well be however, that on the whole the Court was ultra-conservative at a time when a more liberal spirit would have served better ends. The A. A. A. case might likely have been otherwise decided—though the issue was fairly debatable. There was, however, perhaps some real justification for dissatisfaction with the New York Minimum Wage law case, though national legislation was not therein involved.
But, be that as it may, the Court has never been for any protracted period of its existence free from public criticism. In fact, it cannot—and doubtless does not—expect any such immunity. On the contrary, there is no more deplorable and portentous a political symptom in a real democracy than indifference or apathy on the part of the public to the functioning of their major agencies of government. There is a vast difference, however, between this and such a subtle but ominous attack as that launched at the Court by the President as the powerful spearhead of the forces of unrest—a difference that recalls the words of Justice Holmes in earlier days: "The attacks upon the Court," he asserted, "are merely an expression of the unrest that seems to wonder vaguely whether law and order pay. When the ignorant are taught to doubt, they do not know what they safely may believe."
If the President succeeds in imposing his will on Congress, it may mark the beginning of the end of American democracy—at least as we have grown up to know it. Immediately it will create a Court that will incarnate the philosophy and spirit of the New Deal, for if the Senate allows the bill to pass, it will undoubtedly accept in the same subservient spirit the appointments that will follow. The President, of course, would never have attempted such a bold coup d'état unless determined to follow up its success in Congress by the selection of judges who will assure his designs relatively complete judicial immunity. In effect, therefore, what he really proposes is the removal of practically all judicial check on radical constitutional experiments and the conversion of the courts from their traditional position as a coordinate department to a subordinate division of government. As a necessary corollary, it will mean political control of the judiciary, a situation which history has shown to be an unmitigated evil since the days of the Stuart kings and long before. In purpose and result it will effect a change in the Constitution otherwise than by the methods prescribed. In fact, Raymond Moley has gone so far as to assert that the whole project "comes perilously near to a proposal to abolish constitutional government."
The method devised by the President for the attainment of his ends, when denuded of all verbal disguise, is nothing less than a coercive device to either drive the majority of the Court into immediate retirement or reduce it to an ineffective minority in opinion. Whether we entirely agree with them in legal doctrine, political theory and social philosophy or not, our instincts revolt at the impending humiliation to which these men, who have long and devotedly served their country would be subjected by being placed in a position which, as Lippmann summed it up, would offer them as the only alternatives "the choice between resignation and being publicly branded as senile." The situation is by no mean mitigated by the fact that the proprieties and restraints imposed by their office, substantially deprive them of the right of self defense. They must remain silent and look to the public, whom they serve, for support.
Furthermore, the situation has been greatly aggravated by a widespread opinion that the President has acted throughout more in the spirit of an autocrat than an American statesman. There is a feeling that he has not played the game according to the rules of candor and the standards of fairness that are exacted of the Chief Executive, that he deliberately kept the people in the dark at a time when they were asked by their votes to endorse his policies and were entitled to be informed as to his major intentions and that he studiously attempted to disguise the real character of his proposals when submitted and to divert public attention from their implications by integrating them in a comprehensive program embracing many other matters of more or less merit. Finally, the array of arguments by which he attempted to justify his course, though superficially ingenious, have been readily shown to be for the most part fundamentally unsound. It cannot be too strongly insisted that these impressions of the presidential motives and methods are by no means inspired by partisan bias. If there is any injustice in them, the President has only himself to blame.
The nation is dedicated to liberal ideals. It stands for progress—though in subordination to responsible government and the orderly processes of the law. It wants to get things done that will promote the happiness and welfare of its people. It emphatically does not believe, however, in that dubious brand of Administration that looks only to ends without regard to the constitutional and moral proprieties of the means. Finally, it has observed nothing about it in the troubled world of today to cause it to revise its judgment as to the superior and tried wisdom of a government of laws and not of men.