Arbitrary Power in a Republic Does Not Lie Even in a Majority

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Joseph C. O'Mahoney
U. S. Senator, Wyoming; Democrat
Over NBC red network, May 5, 1937

Publishing Information

The President's Friends and the Court

The judiciary bill which has now been before Congress for three months has been represented to the people of the country as the keystone of the arch of President Roosevelt's program of social and economic reform.
Because I find myself unable to give it my support, although I have always been and am now an earnest advocate of the President's policies, I feel it incumbent upon me at this time to make a public statement, addressed primarily to the people of my State, of the reasons which have impelled me to this decision. I have not reached it lightly, nor without regret that I cannot, in conscience, go along.
Far from being a direct and speedy method of solving the substantial problems with which our country is beset, this measure stands revealed, after weeks of testimony before the Judiciary Committee as an utterly futile gesture, so far as immediate needs are concerned, and as an extremely dangerous innovation as regards our constitutional system.
This bill not only does not accomplish any of the objectives for which it was ostensibly offered, but it does not make effective a single substantive purpose of the New Deal.
We were told that Federal judges, particularly the Justices of the Supreme Court, were too old and that it was necessary to infuse young blood into the Judiciary. It is acknowledged now that the proposed bill will not remove aged justices from that Court or from any court, nor insure the appointment or retention of young judges.
The bill contains language which specifically exempts from its immediate operation judges, no matter how old, who have not served, ten years on the bench. Under this provision, it would be possible, if the bill should pass, for the President to appoint to the Supreme Court a man sixty-nine years of age, indeed, a man sixty-nine years and eleven months of age, who, if he had never served as a Federal judge, would be entitled to sit upon the bench until he had reached the age of seventy-nine years or seventy-nine years and eleven months, without being subject to having a mentor placed beside him.
More than that, since the bill fixes the number of judges permanently at fifteen, in the event six new appointments are made, then, in such case, there would be no possible way thereafter of infusing young blood into the Court without a new law and a new expansion of the Court. Within a comparatively short time, we should have a Court of fifteen old men instead of nine old men, and could do nothing about it except by further enlargement to create a sort of House of Lords to fill the magnificent marble palace on Capitol Hill.
But the age of the justices is not the complaint of the proponents of the bill. Indeed, several of the witnesses who appeared before the Judiciary Committee on behalf of the proposal emphatically declared their opposition to any provision that would compel the retirement of judges at any given age. No one denies that Justice Brandeis now is, and that Justice Holmes, until his voluntary resignation, was, an able, vigorous, just, and liberal Justice at a much more advanced age than that which is fixed in the bill as the age of senility. No, it is not age, but the point of view, the economic predilections, to use the current phrase, of some of the justices that is the cause of complaint. But one of these justices, whose views are condemned and whose name is most frequently on the tongues of the advocates of the measure, is the youngest man on the bench and will not be touched by the legislation. But it will affect the venerable, the distinguished, the brilliant Brandeis whose progressive views for a generation have been a beacon light to all who call themselves liberals.
So the bill fails on the score of age and it fails on the score of economic philosophy.
When the Attorney General and his Assistant appeared before the Senate Committee to make out a case for the bill, they each attacked the divided decisions, the rulings of the Court by which laws of Congress and of the states have been held to be unconstitutional by a vote of five to four. It is acknowledged now that the bill does not touch this defect, that decisions of eight to seven will be just as possible in the new Court as five to four decisions are now, and that Justice Roberts will still be in the Court, after its expansion, to be the eighth vote as he is now the fifth. So the bill does not do away with "Roberts-land," as one of the proponents of the bill has designated that twilight zone between the constitutional and the unconstitutional law.
That there has been in the past an altogether unwarranted, undeniable, and even vicious tendency on the part of the Court to invade the legislative field, I would be the last to deny. That we should attempt to correct this tendency by ourselves invading the judicial field, I most respectfully but emphatically deny.
The proponents of the bill go up and down the country denouncing the Supreme Court for its reactionary decisions and the Federal judiciary generally for the abuse of the power of injunction as though this measure gave some assurance that only progressive decisions would be rendered in the future and government by injunctions abolished as a result of the passage of this bill. Both of these assertions I deny.
There is not a line or a syllable in this bill dealing with the issuance of injunctions by the courts. There is not a single provision in it that affects the power of the inferior courts to tie the hands of the government in dealing with problems of public welfare. There is not a word in it that prevents the inferior courts from holding laws of Congress unconstitutional. Not a single argument made by the proponents of this bill to organized labor and to the liberal forces of the country on these grounds has the remotest bearing on the measure we are asked to support.
When asked to point out how progressive decisions by the Supreme Court would be guaranteed, the advocates of the bill acknowledge, indeed they insist, that the President could have no contract in advance with any new justices that they would render particular decisions in particular cases, or vote to sustain acts of Congress which have not yet been even written. It is acknowledged that the six new justices, since they would not constitute a majority of a Court of fifteen, would have to depend upon the support of at least two of the present justices to uphold any act. And, it must be acknowledged that since all nine of the present justices concurred in holding the NRA unconstitutional, there would be no certainty that any members of the present Court would vote with the new members in any particular case.
Thus every argument which has been advanced to sustain the bill has dissolved on the very tongues of its advocates. Only one count remains—and this is not an argument but a naive expression of hope—the hope that by "the infusion of new blood," a tendency would be developed in the Supreme Court toward a more liberal interpretation of the Constitution. When it was called to their attention that the decisions of the justices could not be predicted and that, in the past, the views and even the decisions of the justices have very frequently disappointed the confidence of their presidential sponsors, then one after another of the witnesses for the bill weakly fell back on the statement "We must take a chance." Surely that is a very poor foundation on which to build the structure of economic justice!
We are told that the Court bill is within the letter of the Constitution—and it is. The Congress does have the legal right to make the Court as large or as small as it pleases. So, too, has Congress the right to refuse to appropriate a single penny to pay the salary of the President or to maintain the White House or any other branch of the government. Such a use of acknowledged legislative power to cripple the Executive would be totally unwarranted and would amount to an attack upon the integrity of the government. How, then, can it be argued that there can be any justification for a similar use of the letter of the Constitution to force the Judiciary?
We are told that the Court has been both expanded and contracted before—and it has, but only once for a frankly political purpose and then by a party that died when the bill was passed and was never resurrected. In the short session of Congress, after the election of Thomas Jefferson but before his inauguration, the Federalist Party passed what was known as the "Midnight Judges Act." This bill reduced the number of the judges of the Supreme Court by one so that Jefferson could not appoint a successor to a member whose death was expected, and it created a large number of new judgeships throughout the country. John Marshall, who had been appointed and confirmed as Chief Justice by the outgoing President, John Adams, whose Secretary of State he was, did not take office in the Court until after Jefferson was sworn in. Adams was even accused of having feverishly worked until midnight on the third of March issuing commissions to the newly created jurists. Almost the first act of the Jefferson administration was to repeal that law. For eight years the founder of the Democratic Party was in the White House, all during that period bitterly resisting what he regarded as the political activity of the Federal judiciary and of John Marshall in particular. He could have overwhelmed Marshall by adopting the device of this bill and expanding the Court, but he never did.
The only other occasion in which there was even the slightest suspicion that the Court was enlarged for a political purpose was during the administration of President Grant when two justices were added to the Supreme Court. A decision in which the government was vitally interested was reversed, but Grant thought the expansion of the Court for the purpose of influencing a decision so politically immoral an act, that he always denied that he had had such a purpose. But even if he had done so, I would not regard an act of his administration as a valid precedent for any democratic administration. The democratic precedents are all for the maintenance of the dignity, the honor, and independence of the judiciary. Woodrow Wilson, in language that burns, once declared that the people would curse the administration that would expand the Court in order to affect its judgments.
Let us not mislead ourselves by an impatience to secure economic and social reform. Let us not injure ourselves, our objectives, and our government by our desire to repudiate those judges who, we choose to believe, have been responsible for delaying progress. If we who call ourselves liberal can by statute increase this Court in order to induce or force it to interpret close constitutional questions the way we want them decided, then manifestly any succeeding administration can do likewise and the Supreme Court will be hopelessly engulfed by the political whirlpool.
The Supreme Court ought to be above politics. If it has debased itself in the past, if any of its members have framed their decisions upon any other consideration than the law and the facts, then it and such members have in such instances stepped down from the position of high respect and confidence in which the people have placed them. The Congress cannot remedy such failures of judicial integrity when by expanding the Court to influence its decisions, we undermine the very basis of public confidence in the Court.
I quite agree that the Court has, upon occasion, allowed its economic predilections to lead it into the condemnation of statutes on the ground of the wisdom or propriety of such laws rather than on the ground of the power of Congress or the legislature to pass them. But we shall not correct this error by attempting to instill into the Court another and a different set of predilections. If the Court has erred—and I think it has—let us remedy the fault, not by applying force to the judiciary but by ourselves adhering strictly to constitutional propriety. We shall thus the more quickly get ourselves and the Court back to sound principles.
They make a sad mistake who imagine that there can be no New Deal legislation without this court bill. What measure is proposed so strange and radical that it cannot be enacted under the Constitution as it stands? It is true, as the Attorney General, his Assistant, and all the other witnesses who appeared on behalf of the judiciary bill have said, that the Constitution needs no amendment to give Congress substantive power to do the things that ought to be done. It is true that the constitutional interpretation of Chief Justice Marshall, who defined the Constitution as a broad instrument of adequate national power, would be sufficient for this hour if reasserted by the Congress in careful laws and by the courts in judgments based on early precedents. The Supreme Court has already indicated its return to the interpretation that is needed.
The no-man's land we were talking about last summer at the time of the national conventions, that zone in which neither the states nor the Federal government could legislate with respect to wages and hours and conditions of labor, has disappeared. The Court has seen the light. By the Wagner Act decisions, the formula for collective bargaining has been validated. The Court has recognized the Federal power to legislate with respect to production that actually is national in its effect. The old impediments have been swept aside.
Why then should the friends of social and economic justice be called upon to struggle over a judiciary bill which, in the very words of its proponents, offers only a chance that at some unknown time in the future the Court might sustain the reform laws which Congress ought to pass if they were attacked?
Sometimes it seems as though the public has the impression that the Supreme Court has a legislative function and that no law becomes effective until approved by that body. Of course, such is not the fact. The Supreme Court has no jurisdiction to pass upon any law until it comes into question in a litigated case. The judicial power extends only to cases. Therefore, there are thousands of laws which the Court is never called upon to construe, much less to approve.
Let us remember that the Missouri Compromise Act was on the statute books for twenty years before it was attacked and invalidated. When the AAA was held unconstitutional by the Supreme Court, Congress immediately passed the Soil Conservation Act to effect the same general purposes—and to date, it has not even been questioned in any court. There is no reason to believe that any policy now contemplated by this administration will be subject to attack in the courts unless, by pursuing this attack upon the independence of the judiciary, we instill in the people of the United States the fear that our form of government is in danger.
This Constitution of ours, this government of the United States, represents the greatest advances in human freedom that civilization records. The most important element in that advance is that provision of our system which makes the courts independent of both the executive and legislative power. Until the independence of the judiciary was guaranteed here in our land, the courts which ruled our ancestors were the pawns of kings and parliaments. They were the instruments of oppression. They have sometimes been oppressively used here, but the ideal that has always been held before the American courts has been that they are the refuge of justice and freedom against arbitrary power, that they should never be under even the suspicion that they might be dominated by either the executive or legislative power.
Article I of the Constitution of the United States provides, "All legislative powers herein granted shall be vested in a Congress of the United States." If language means anything, these words mean that Congress is the law-making body.
Article II provides, "The executive power shall be vested in a President of the United States of America." If language means anything, those words mean that the President is the officer designated to enforce the law just as Congress is the body designated to make the law.
Article III provides, "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." The Constitution provides that the judicial power, shall extend to "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made under their authority." If language means anything, those words mean that the courts have all the judicial power that can be exercised under the Constitution. No other person or collection of persons, no other body, no other officer has the right to exercise that judicial power or to invade it in any way, but manifestly if Congress deliberately increases the number of judges on the Supreme Court for the express purpose, as has been announced in this case, of bringing about a different interpretation of the Constitution, that constitutes an invasion of the judicial power of the United States.
Now every citizen of this country is free to urge any alteration of the form of his government which seems desirable to him and is free to argue for it in any way that he may see fit, but when I was sworn in as a member of the Senate of the United States, I assumed an obligation under oath to represent the State of Wyoming under this Constitution according to its written form. The Constitution provides a distinct method by which it may be changed to meet changing conditions. I am bound by that method. I cannot by indirection, through increasing the number of judges on the Supreme Court, for the purpose of forcing upon that Tribunal a particular point of view, make it possible for some future administration to change the fundamental law without submission to the people.
If it is desirable to infuse young blood into the judiciary, the only way to do that is by constitutional amendment compelling the retirement of judges at a given age. If it is desirable to do away with divided decisions by which laws of Congress are found unconstitutional, the only way to do that is by constitutional amendment or, if Senator Norris is correct in his contention, by a statute requiring a concurrence of more than a majority of the members of the Court to invalidate a particular law. If it is desirable to keep the Court in tune with popular opinion, the only way to do that is by constitutional amendment doing away with life tenure and fixing definite terms.
But we are told that it would be impossible to ratify such a constitutional amendment. My friends, when this bill was sent to the Congress, the legislatures of forty-two states were in session and of these forty-two legislatures, only four were in states that were completely controlled by the Republican Party. I am persuaded that any amendment designed to accomplish any one or all of the three formal changes with respect to age and tenure of service could have been ratified in less time than it has taken for the Senate Committee on the Judiciary to consider this bill.
When I hear the statement made that because 27,000,000 citizens voted last November for the President for whose election I labored and in whose triumph I rejoiced, the people gave a mandate to the members of Congress to surrender their own judgment and convictions on any question that may arise, I am reminded of a declaration of principle to be found in the eloquent constitution of Wyoming, a declaration which breathes the very soul of America.
"Arbitrary power," says the Constitution of Wyoming, "exists nowhere in a republic, not even in the largest majority."
The majority is represented in the President and in the Congress. The rights of the majority are adequately protected by those who are elected to make the law and by him who is elected to enforce the law. But the right of the individual to be protected against the arbitrary use of power can be guaranteed only by the courts and if the independence of the courts is not maintained, all guarantees of freedom and justice vanish. This is not in any sense a partisan question, it is the most fundamental question of basic Americanism which has been presented to the Congress in a generation.
It would be the most tragic mistake in the history of the liberal movement in this country if this bill should pass. It accomplishes nothing except to divide the forces of economic and social justice.
This country does not need new judges on the Supreme Court. It needs jobs for the unemployed. It needs opportunities for the rising generation. It needs to open the door of the future to youth. It needs economic stability.
The problem is pressing for solution now, not at some uncertain date in the future when the Supreme Court may hand down a constitutional decision in some case brought by litigants, who may not yet be born, to interpret some law that has not yet been passed.
The natural wealth of the United States is great enough to support every inhabitant in peace and plenty—yet millions are in distress. There is no man so blind now to deny that this is a national problem.
The Court bill does not solve it and holds out no prospect of solving it. Instead of indulging in futile debate over abstract questions of judicial power and the desirability of authorizing the President to appoint judges whose action cannot be foretold and who will have no power to legislate, let Congress exercise the power which no one now denies that it has. Let us meet the situation with which we are now confronted by substantive law in the manner that the logic of modern economic conditions renders necessary.
Great though the achievements of the President have been; wise and necessary though his social program is; loyal as I have been and am to him personally and to the political movement he represents, I cannot believe that the judiciary bill should pass. Patience will pay us dividends. Let us enact the program the people want. The courts cannot hold it back. But we who call ourselves liberal, we can defeat it by insisting on a measure which violates the deepest convictions of constitutional propriety of thousands of a great President's friends.