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Mr. King, from the Committee on the judiciary, submitted the following:
The Committee on the Judiciary, to whom was referred the bill (S. 1392) to reorganize the judicial branch of the Government after full consideration, having unanimously amended the measure, hereby report the bill adversely with the recommendation that it do not pass....
It should be pointed out here that a substantial portion of the message was devoted to a discussion of the evils of conflicting decisions by inferior courts on constitutional questions and to the alleged abuse of the power of injunction by some of the Federal courts. These matters, however, have no bearing on the bill before us, for it contains neither a line nor a sentence dealing with either of those problems.
It thus appears that the bill before us does not with certainty provide for in creasing the personnel of the Federal judiciary, does not remedy the law's delay, does not serve the interest of the "poorer litigant" and does not provide for the "constant" or "persistent infusion of new blood" into the judiciary. What, then, does it do?
The answer is clear. It applies force to the judiciary. It is an attempt to impose upon the courts a course of action, a line of decision which, without that force, without that imposition, the judiciary might not adopt.
Can there be any doubt that this is the purpose of the bill? Increasing the personnel is not the object of this measure; infusing young blood is not the object; for if either one of these purposes had been in the minds of the proponents, the drafters would not have written the following clause to be found on page 2, lines 1 to 4, inclusive:
"If, on the other hand, any judge eligible for retirement should feel that his court would suffer because of an increase of its membership, he may retire or resign under already existing provisions of law if he wishes to do so."
Three invitations to the members of the Supreme Court over 70 years of age to get out despite all the talk about increasing personnel to expedite the disposition of cases and remedy the law's delay. One by the bill. One by the President's message. One by the Attorney General.
Those of us who hold office in this Government, however humble or exalted it may be, are creatures of the Constitution. To it we owe all the power and authority we possess. Outside of it we have none. We are bound by it in every official act.
We know that this instrument, without which we would not be able to call ourselves presidents, judges, or legislators, was carefully planned and deliberately framed to establish three coordinate branches of government, every one of them to be independent of the others. For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the Government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people's servants and no one branch could overawe or subjugate the others. That is the American system. It is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world, than the immediate adoption of any legislation, however beneficial.
That judges should hold office during good behavior is the prescription. It is founded upon historic experience of the utmost significance. Compensation at stated times, which compensation was not to be diminished during their tenure, was also ordained. Those comprehensible terms were the outgrowths of experience which was deep-seated. Of the 55 men in the Constitutional Convention, nearly one-half had actually fought in the War for Independence. Eight of the men present had signed the Declaration of Independence, in which, giving their reasons for the act, they had said of their king: "He has made judges dependent upon his will alone for their tenure of office and the amount and payment of their salaries." They sought to correct an abuse and to prevent its recurrence. When these men wrote the Constitution of their new Government, they still sought to avoid such an abuse as had led to such a bloody war as the one through which they had just passed. So they created a judicial branch of government consisting of courts not conditionally but absolutely independent in the discharge of their functions, and they intended that entire and impartial independence should prevail. Interference with this independence was prohibited, not partially but totally. Behavior other than good was the sole and only cause for interference. This judicial system is the priceless heritage of every American.
By this bill another and wholly different cause is proposed for the intervention of executive influence, namely, age. Age and behavior have no connection; they are unrelated subjects. By this bill, judges who have reached 70 years of age may remain on the bench and have their judgment augmented if they agree with the new appointee, or vetoed if they disagree. This is far from the independence intended for the courts by the framers of the Constitution. This is an unwarranted influence accorded the appointing agency, contrary to the spirit of the Constitution. The bill sets up a plan which has as its stability the changing will or inclination of an agency not a part of the judicial system. Constitutionally, the bill can have no sanction. The effect of the bill, as stated by the Attorney General to the committee, and indeed by the President in both his message and speech, is in violation of the organic law.
No amount of sophistry can cover up this fact. The effect of this bill is not to provide for an increase in the number of Justices composing the Supreme Court. The effect is to provide a forced retirement or, failing in this, to take from the Justices affected a free exercise of their independent judgment.
"When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress and to approve or disapprove the public policy written into these laws....
"We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution not over it. In our courts we want a government of laws and not of men."
These words constitute a charge that the Supreme Court has exceeded the boundaries of its jurisdiction and invaded the field reserved by the Constitution to the legislative branch of the Government. At best the accusation is opinion only. It is not the conclusion of judicial process.
Here is the frank acknowledgement that neither speed nor "new blood" in the judiciary is the object of this legislation, but a change in the decisions of the Court a subordination of the views of the judges to the views of the executive and legislative, a change to be brought about by forcing certain judges off the bench or increasing their number.
Let us, for the purpose of the argument, grant that the Court has been wrong, wrong not only in that it has rendered mistaken opinions but wrong in the far more serious sense that it has substituted its will for the congressional will in the matter of legislation. May we nevertheless safely punish the Court?
Today it may be the Court which is charged with forgetting its constitutional duties. Tomorrow it may be the Congress. The next day it may be the Executive. If we yield to temptation now to lay the lash upon the Court, we are only teaching others how to apply it to ourselves and to the people when the occasion seems to warrant. Manifestly, if we may force the hand of the Court to secure our interpretation of the Constitution, then some succeeding Congress may repeat the process to secure another and a different interpretation and one which may not sound so pleasant in our ears as that for which we now contend.
There is a remedy for usurpation or other judicial wrongdoing. If this bill be supported by the toilers of this country upon the ground that they want a Court which will sustain legislation limiting hours and providing minimum wages, they must remember that the procedure employed in the bill could be used in another administration to lengthen hours and to decrease wages. If farmers want agricultural relief and favor this bill upon the ground that it gives them a Court which will sustain legislation in their favor, they must remember that the procedure employed might some day be used to deprive them of every vestige of a farm relief.
When members of the Court usurp legislative powers or attempt to exercise political power, they lay themselves open to the charge of having lapsed from that "good behavior" which determines the period of their official life. But, if you say, the process of impeachment is difficult and uncertain, the answer is, the people made it so when they framed the Constitution. It is not for us, the servants of the people, the instruments of the Constitution, to find a more easy way to do that which our masters made difficult.
But, if the fault of the judges is not so grievous as to warrant impeachment, if their offense is merely that they have grown old, and we feel, therefore, that there should be a "constant infusion of new blood," then obviously the way to achieve that result is by constitutional amendment fixing definite terms for the members of the judiciary or making mandatory their retirement at a given age. Such a provision would indeed provide for the constant infusion of new blood, not only now but at all times in the future. The plan before us is but a temporary expedient which operates once and then never again, leaving the Court as permanently expanded to become once more a court of old men, gradually year by year falling behind the times.
How much better to proceed according to the rule laid down by the Constitution itself than by indirection to achieve our purposes. The futility and absurdity of the devious rather than the direct method is illustrated by the effect upon the problem of the retirement of Justice Van Devanter....
But, if you say the process of reform by amendment is difficult and uncertain, the answer is, the people made it so when they framed the Constitution, and it is not for us, the servants of the people, by indirection to evade their will, or by devious methods to secure reforms upon which they only in their popular capacity have the right to pass.
This bill is an invasion of judicial power such as has never before been attempted in this country. It is true that in the closing days of the administration of John Adams a bill was passed creating 16 new circuit judges while reducing by one the number of places on the Supreme Court. It was charged that this was a bill to use the judiciary for a political purpose by providing official positions for members of a defeated party. The repeal of that law was the first task of the Jefferson administration.
Neither the original act nor the repealer was an attempt to change the course of judicial decision. And never in the history of the country has there been such an act. The present bill comes to us, therefore, wholly without precedent.
It is true that the size of the Supreme Court has been changed from time to time, but in every instance after the Adams administration, save one, the changes were made for purely administrative purposes in aid of the Court, not to control it.
The first was by the act of 1801 reducing the number of members from six, as originally constituted, to five. Under the Judiciary Act of 1789 the circuit courts were trial courts and the Justices of the Supreme Court sat in them. That onerous duty was removed by the act of 1801 which created new judgeships for the purpose of relieving the members of the Supreme Court of this task. Since the work of the Justices was thereby reduced, it was provided that the next vacancy should not be filled. Jeffersonians explained the provision by saying that it was intended merely to prevent Jefferson from making an appointment of a successor to Justice Cushing, whose death was expected.
The third change was in 1807 under Jefferson when three new States having been admitted to the Union, a new judicial circuit had to be created, and since it would be impossible for any of the six sitting Justices of the Supreme Court to undertake the trial work in the new circuit (Ohio, Kentucky, and Tennessee), a seventh Justice was added because of the expansion of the country. Had Jefferson wanted to subjugate John Marshall this was his opportunity to multiply members of the Court and overwhelm him, but he did not do it. We have no precedent here.
Thirty years elapsed before the next change. The country had continued to expand. New States were coming in and the same considerations which caused the increase of 1807 moved the representatives of the new West in Congress to demand another expansion. In 1826 a bill adding three justices passed both Houses but did not survive the conference. Andrew Jackson, who was familiar with the needs of the new frontier States, several times urged the legislation. Finally it was achieved in 1837 and the Court was increased from 7 to 9 members.
In 1863 the western frontiers had reached the Pacific. California had been a State since 1850 without representation on the Supreme Court. The exigencies of the war and the development of the coast region finally brought the fifth change when by the act of 1863 a Pacific circuit was created and consequently a tenth member of the High Court.
The congressional majority in Andrew Johnson's administration had slight regard for the rights of minorities and no confidence in the President. Accordingly, a law was passed in 1866, providing that no appointments should be made to the Court until its membership had been reduced from 10 to 7. Doubtless, Thaddeus Stevens feared that the appointees of President Johnson might not agree with reconstruction policies and, if a constitutional question should arise, might vote to hold unconstitutional an act of Congress. But whatever the motive, a reduction of members at the instance of the bitterest majority that ever held sway in Congress to prevent a President from influencing the Court is scarcely a precedent for the expansion of the Court now.
By the time General Grant had become President, in March, 1869, the Court had been reduced to 8 members by the operation of the law of 1866. Presidential appointments were no longer resented, so Congress passed a new law, this time fixing the membership at 9. This law was passed in April, 1869, an important date to remember, for the legal tender decision had not yet been rendered. Grant was authorized to make the additional appointment in December. Before he could make it, however, Justice Grier resigned, and there were thus two vacancies.
The charge has been made that by the appointment to fill these vacancies Grant packed the Court to affect its decision in the legal tender case. Now whatever Grant's purpose may have been in making the particular appointments, it is obvious that Congress did not create the vacancies for the purpose of affecting any decision, because the law was passed long before the Court had acted in Hepburn v. Griswold and Congress made only one vacancy, but two appointments were necessary to change the opinion.
It was on Feb. 7, 1870, that the Court handed down its judgment holding the Legal Tender Act invalid, a decision very much deplored by the administration. It was on the same date that Grant sent down the nomination of the two justices whose votes, on a reconsideration of the issue, caused a reversal of the decision. As it happens, Grant had made two other nominations first, that of his Attorney General, Ebenezer Hoar, who was rejected by the Senate, and Edwin Stanton, who died four days after having been confirmed. These appointments were made in December, 1869, two months before the decision, and Stanton was named, according to Charles Warren, historian of the Supreme Court, not because Grant wanted him but because a large majority of the members of the Senate and the House urged it. So Grant must be acquitted of having packed the Court and Congress is still without a precedent for any act that will tend to impair the independence of the Court.
Shall we now, after 150 years of loyalty to the constitutional ideal of an untrammeled judiciary, duty bound to protect the constitutional rights of the humblest citizen even against the Government itself, create the vicious precedent which must necessarily undermine our system? The only argument for the increase which survives analysis is that Congress should enlarge the Court so as to make the policies of this administration effective.
We are told that a reactionary oligarchy defies the will of the majority, that this is a bill to "unpack" the Court, and give effect to the desires of the majority; that is to say a bill to increase the number of Justices for the express purpose of neutralizing the views of some of the present members. In justification we are told, but without authority, by those who would rationalize this program, that Congress was given the power to determine the size of the Court so that the legislative branch would be able to impose its will upon the judiciary. This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!
This, then, is the dangerous precedent we are asked to establish. When proponents of the bill assert, as they have done, that Congress in the past has altered the number of Justices upon the Supreme Court and that this is reason enough for our doing it now, they show how important precedents are and prove that we should now refrain from any action that would seem to establish one which could be followed hereafter whenever a Congress and an executive should become dissatisfied with the decisions of the Supreme Court.
This is the first time in the history of our country that a proposal to alter the decisions of the Court by enlarging its personnel has been so boldly made. Let us meet it. Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution.
Even if every charge brought against the so-called "reactionary" members of this Court be true, it is far better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members. Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the independent American judiciary from attack as long as this Government stands.
It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government, and we assert that independent courts are the last safeguard of the citizen, where his rights, reserved to him by the express and implied provisions of the Constitution, come in conflict with the power of governmental agencies. We assert that the language of John Marshall, then in his seventy-sixth year, in the Virginia Convention (1829-31), was and is prophetic:
"Advert, sir, to the duties of a judge. He has to pass between the Government and the man whom the Government is prosecuting; between the most powerful individual in the community and the poorest and most unpopular. It is of the last importance that in the exercise of these duties he should observe the utmost fairness. Need I express the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness? The judicial department comes home in its effect to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree, important that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience?". . .
The whole bill prophesies and permits executive and legislative interferences with the independence of the Court, a prophecy and a permission which constitute an affront to the spirit of the Constitution.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." (The Federalist, vol. 2, p. 100, no. 78.)
The spirit of the Constitution emphasizing the establishment of an independent judicial branch was re-enunciated by Madison in Nos. 47 and 48 (The Federalist, vol. 1, pp. 329, SS9) and by John Adams (Adams' Works, vol. 1, p. 186).
If interference with the judgment of an independent judiciary is to be countenanced in any degree, then it is permitted and sanctioned in all degrees. There is no constituted power to say where the degree ends or begins, and the political administration of the hour may apply the essential "concepts of justice" by equipping the courts with one strain of "new blood," while the political administration of another day use a different light and a different blood test. Thus would influence run riot. Thus perpetuity, independence, and stability belonging to the judicial arm of the Government and relied on by lawyers and laity, are lost. Thus is confidence extinguished.
From the very beginning of our Government to this hour, the fundamental necessity of maintaining inviolate the independence of the three coordinate branches of government has been recognized by legislators, jurists, and presidents....
In other words, the framers of the Constitution were not satisfied to give the Court power to pass only on cases arising under the laws but insisted on making it quite clear that the power extends to cases arising "under the Constitution." Moreover, Article VI of the Constitution, clause 2, provides:
A citizen has the right to appeal to the Constitution from such a statute. He has the right to demand that Congress shall not pass any act in violation of that instrument, and, if Congress does pass such an act, he has the right to seek refuge in the courts and to expect the Supreme Court to strike down the act if it does in fact violate the Constitution. A written constitution would be valueless if it were otherwise.
The right and duty of the Court to construe the Constitution is thus made clear. The question may, however, be propounded whether in construing that instrument the Court has undertaken to "override the judgment of the Congress on legislative policy." It is not necessary for this committee to defend the Court from such a charge. An invasion of the legislative power by the judiciary would not, as has already been indicated, justify the invasion of judicial authority by the legislative power. The proper remedy against such an invasion is provided in the Constitution.
We may, however, point out that neither in this administration nor in any previous administration has the Supreme Court held unconstitutional more than a minor fraction of the laws which have been enacted. In 148 years, from 1789 to 1987, only sixty-four acts of Congress have been declared unconstitutional sixty-four acts out of a total of approximately 58,000....
These 64 acts were held invalid in 76 cases, 30 of which were decided by the unanimous vote of all the justices, 9 by the agreement of all but one of the justices, 14 by the agreement of all but two, another 12 by agreement of all but three. In 11 cases only were there as many as four dissenting votes when the laws were struck down.
Only four statutes enacted by the present administration have been declared unconstitutional with three or more dissenting votes. And only eleven statutes, or parts thereof, bearing approval of the present Chief Executive out of 2,669 signed by him during his first administration, have been invalidated. Of the eleven, three the Municipal Bankruptcy Act, the Farm Mortgage Act and the Railroad Pension Act were not what have been commonly denominated administration measures. When he attached his signature to the Railroad Pension Act, the President was quoted as having expressed his personal doubt as to the constitutionality of the measure. The Farm Mortgage Act was later rewritten by the Congress, reenacted, and in its new form sustained by the Court which had previously held it void. Both the Farm Mortgage Act in its original form and the National Recovery Administration Act were held to be unconstitutional by a unanimous vote of all the justices. With this record of fact, it can scarcely be said with accuracy that the legislative power has suffered seriously at the hands of the Court.
But even if the case were far worse than it is alleged to be, it would still be no argument in favor of this bill to say that the courts and some judges have abused their power. The courts are not perfect, nor are the judges. The Congress is not perfect, nor are Senators and Representatives. The Executive is not perfect. These branches of government and the offices under them are filled by human beings who for the most part strive to live up to the dignity and idealism of a system that was designed to achieve the greatest possible measure of justice and freedom for all the people. We shall destroy the system when we reduce it to the imperfect standards of the men who operate it. We shall strengthen it and ourselves, we shall make justice and liberty for all men more certain when, by patience and self-restraint, we maintain it on the high plane on which it was conceived.
Inconvenience and even delay in the enactment of legislation is not a heavy price to pay for our system. Constitutional democracy moves forward with certainty rather than with speed. The safety and the permanence of the progressive march of our civilization are far more important to us and to those who are to come after us than the enactment now of any particular law. The Constitution of the United States provides ample opportunity for the expression of popular will to bring about such reforms and changes as the people may deem essential to their present and future welfare. It is the people's charter of the powers granted those who govern them....
It contains the germ of a system of centralized administration of law that would enable an executive so minded to send his judges into every judicial district in the land to sit in judgment on controversies between the Government and the citizen.
Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is an interpretation to be changed with each change of administration.