Controversial and Non-Controversial Aspects of the Court Proposal

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William Draper Lewis
Director, American Law Institute
Former Professor and Dean, Pennsylvania Law School
At the Church League for Industrial Democracy, February 22, 1937

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In President Roosevelt's message on the Judiciary he made four recommendations. The last three have received very general, if not universal, approval. One is that the Supreme Court be given power to appoint an administrative assistant who would be charged with the duty of watching the calendars and the business of all the Federal Courts; one would provide for a temporary assignment by the Chief Justice of the United States of Federal Judges hereafter appointed to serve in any circuit or district where the business of the court is in arrears; another is that no decision, injunction, judgment or decree on any constitutional question be promulgated by any Federal court without previous and ample notice to the Attorney General and an opportunity for the United States to present evidence and be heard, and also that when any court of first instance determines a question of constitutionality there shall be an immediate appeal to the Supreme Court, such cases taking precedence over all other cases.
The debate has centered, and rightly, on his first recommendation: That the Congress shall enact legislation providing for the appointment by the President of additional judges in all Federal courts without exception where there are incumbent judges of retirement age present (at present seventy years) who do not choose to retire or resign. The problem of the proper provision to be made for the retirement of judges is one which is not easy to solve in a satisfactory manner. The Constitution provides life tenure for the Federal judiciary. The recommendation of the President, looked at entirely apart from its probable immediate effect on the number and character of the membership of the Supreme Court is perhaps as well, if not better, constituted than any other suggestion that has ever been made to the realities of the situation. We all know that many judges of seventy or over are not only in full possession of their mental faculties, but are as capable of dealing with new questions as they ever were. The theory that a man necessarily becomes more set in his mental processes as he grows older is one which may be generally correct, but it certainly has many notable exceptions. If the late Justice Holmes, for instance, had been obliged to retire at seventy, the constitutional and other laws of this country would have been distinctly poorer than it is. On the other hand, there are many examples of judges who, continuing in office after they reach seventy, for years before their death are mentally and physically incapable of performing their duties efficiently, even though it would be an act of peculiar cruelty to ask them to submit to the inquiry of a commission appointed to test their capacity.
The President's proposition permits the judge over seventy to continue, but insures that the Court shall be composed of a sufficient number of judges to carry on the public business. We cannot say that, if adopted, in the long run it would tend to make the Court more liberal or more conservative. Suppose the President's recommendation had now been in force for ten or more years, the conservative Coolidge and the conservative Hoover would have had an opportunity to appoint additional judges for all the members of the Supreme Court now over seventy, except Justice Butler, and the Court unquestionably would have been more weighted on the conservative side than it is today. At the same time, it is true that if President Roosevelt's suggestion is adopted he will have at once the opportunity to appoint six new members of the Court as six of the nine members are now over seventy years of age, and it is this fact, and this alone, which causes the violent attacks now being made on his proposal.
Stated shortly, the issue presented by the President's recommendation is this: Admitting that there is much to be said for his plan as a permanent plan, and this I think will he conceded by most thoughtful persons, is it desirable that Roosevelt shall now have this power in view of the fact that a majority of the Court are over seventy?
Your individual answers to that question should, I submit depend on whether you are a conservative or a liberal. It is a fact, and it is of first importance that you as citizens face facts, that many Acts of Congress present constitutional questions of doubt and difficulty, and this is true of much, if not all, of the so-called New Deal legislation, both adopted and in prospect of adoption. When I say they present questions of doubt and difficulty, I mean that learned judges who are also learned constitutional lawyers may fairly differ as to their constitutionality.
Furthermore, any President, in appointing a judge, may able to know beforehand with reasonable certainty whether the man he is appointing is so mentally constituted that he will give, on the one hand, a liberal or, on the other hand, a conservative construction to the powers vested by the Constitution in the Federal government. It would have been, for instance, a poor guesser who would not have thought before the AAA decision, which was 6 to 3 against the Act, that Justices Brandeis, Stone and Cardozo would have regarded the legislation as constitutional and that Justices McReynolds, Van Devanter, Sutherland and Butler would have regarded it as unconstitutional. Should this legislation recommended by the President go through, it is, therefore, entirely possible for him to appoint six men to the Court who will decide most doubtful questions as the ordinary liberal would decide them. This will mean that much legislation, which would be held unconstitutional by the Court as at present constituted, may well be held constitutional by the Court as reconstituted. A President need make no bargain with any of his appointees. Indeed, no honorable President would suggest such a bargain, but nevertheless he can foretell, not with absolute, but with reasonable certainty the attitude of his appointees on admittedly doubtful, though vital questions of constitutional law.
I reiterate, therefore, my statement that whether you want this legislation or not which the President has proposed should depend upon whether you are or are not in favor of the New Deal and the main lines of its legislation. If you are opposed, then you should be against the legislation, unless you feel that the people of the United States having, after four years' experience, by an overwhelming majority voted for what we know as the New Deal, it would produce a dangerous situation not to permit the Supreme Court to respond to what I may term the persistently more liberal attitude of the great mass of our people. I have respect for the great majority of the leaders of the bar of the United States who are opposing the President on this matter. They feel deeply. They are sincere because they are convinced conservatives. They are men convinced that the whole trend of the New Deal is wrong. They voted against the President or, being in the South, while they voted for the President, did so with the sincere hope that nearly all the legislation which he would desire should be defeated, if not in Congress, at least by the Supreme Court.
As to those of you who are in favor of the general lines of the New Deal there should be no doubt. You should support the President's suggested legislation. There is no valid excuse for your not doing so.
As I voted for the President and as I am in sympathy with the New Deal, not only its objects, but, in the great majority of instances, the legislation designed to attain those objects, I am in favor of the President's recommendation. It is timely; it is in the broad sense of the word conservative. We may have to come to amending the Constitution. But why not try a reasonably liberal interpretation of the powers given to the Federal government by the Constitution as now written?