• U.S.

JUDICIARY: The Big Debate

19 minute read

(See front cover)

Though no committee of Congress had yet begun hearings on it, the great debate on President Roosevelt’s proposals to reform the Judiciary and, incidentally, to alter the Supreme Court, last week burst prematurely open in full Senate. First Tennessee’s windy McKellar, then Arizona’s courtly Ashurst, with interpolations by thunderous Majority Leader Robinson, shook the air with preliminary salvos. Reason: even before the historic Supreme Court Battle of 1937 began, the Administration was losing ground.

“Oh Kaaay.” Senator Ashurst, the soul of oldtime gallantry, would hardly be so rude as to argue against a lady, but it so happened that the arguments he rose to refute were last week most strikingly expressed by a woman. Columnist Dorothy Thompson (whose husband, Sinclair Lewis, wrote It Can’t Happen Here) wrote:

“No people ever recognize their Dictator in advance. He never stands for election on the platform of dictatorship. . . . Since the great American tradition is freedom and democracy you can bet that our dictator, God help us! will be a great democrat, through whose leadership alone democracy can be realized. And nobody will ever say ‘Help to him or ‘Ave Caesar’ nor will they call him ‘Führer’ or ‘Duce.’ But they will greet him with one great big, universal, democratic, sheeplike blat of ‘O. K., Chief! Fix it like you wanna, Chief! Oh Kaaay!'”

Others put the argument in different fashion. Explaining his position to the Indiana General Assembly, Representative Samuel B. Pettengill of South Bend, wrote: “A packed jury, a packed Court and a stacked deck of cards are on the same moral plane. … It is more power than a good man should want or a bad man should have.”

In a national broadcast Senator Burton K. Wheeler cried: “Every labor leader, every farmer and every progressive-minded citizen in the United States would have been shocked and protested from the housetops if President Harding, President Coolidge or President Hoover had even intimated that they wanted to increase the Supreme Court so as to make it subservient to their wishes. The progressives would have said, and rightly so, that it was fundamentally unsound, morally wrong and an attempt to set up a dictatorship in this country.”

“I Marvel.” When Senator Ashurst rose last week in the Senate, he was interrupted by Senator Bailey of North Carolina who asked whether Mr. Ashurst did not say after the Supreme Court’s NIRA decision that among the “unjust criticisms” leveled at the President was the charge that he intended to enlarge the Court. Senator Ashurst at that time said: “A more ridiculous, absurd and unjust criticism of a President was never made. No person whose opinion is respected has favored attempting such a reckless theory and policy.”

Unabashed, Mr. Ashurst now replied: “It is obvious from the record that that is my utterance. The rhetoric alone carries its proof. . . . The man who attempts to be consistent in his public service may end up consistent indeed, but never accomplish anything else.”

In spite of his inconsistency and in spite of his ponderous eloquence, Senator Ashurst succeeded in driving home one point which many opponents of the President’s proposal ignored. Said he: “That bill is the mildest of all the bills that could have been introduced on the subject and I marvel, in the present circumstances, at the moderation of the President. . . . His proposal does not tinker with the Constitution. . . . There is nothing in the bill that in any way restricts the Supreme Court acting as it has in the past. . . .”

Liberals’ Dilemma— If Franklin Roosevelt had offered his Court plan saying, “Here’s your baby. Now get to work for it,” he could not have more clearly summoned the liberals of the U. S. to back him up. For liberals have for two years been complaining that the Supreme Court or the Constitution had to be altered to carry out their social and economic plans, and finally the President was offering to show them how. But Senator Ashurst’s demonstration of the “mildness” of the President’s plan proved almost too much for liberals to stomach. He had practically proved that the President’s bill would not effect any permanent judicial change. Its only long-range effects would be to increase the number of justices on the Supreme Court and set a precedent for future presidents to propose bills to pack the Court. But if Franklin Roosevelt increases the Supreme Court to 15 members, the time may come when all 15 are over 70 and archconservatives, yet so far as the present bill goes no future President would be entitled to Franklin Roosevelt’s privilege of appointing new members. Thus stripped to its essentials, the bill became merely a means of attaining a temporary political end: of putting enough New Dealers on the Court to secure Franklin Roosevelt’s present program from being declared unconstitutional. Most liberals wanted a lot more, not temporary political victory but permanent judicial reform to make it easier in the future for the Federal Government to take such social and economic steps as liberals may want.

Result was that liberals began scouting intensively for alternative or compromise proposals. Last week these began being offered on all sides. They fell into five chief classes:

1) To keep the Court young. A Constitutional amendment was offered by Senator Burke of Nebraska proposing to allow Supreme Court Justices to retire on full pay at 70 and require them to do so at 75. Although this was based on the President’s argument that younger judges are needed, it did not appeal particularly to most liberals, because the two outstanding examples in recent years of aged justices have been the Court’s famed Liberals, Justice Holmes who resigned at 90 and Justice Brandeis who at 80 is still on the bench.

2) To keep the Court up-to-date by continual infusions of new blood. Although Senator McKellar last week gradually emptied the Senate with two hours of bumbling oratory, he succeeded before doing so in getting over a pertinent point: President Taft appointed five Supreme Court justices, Harding in a little more than two years appointed four, Hoover appointed three. Only four Presidents have had no chance to appoint even one justice: William Henry Harrison (who was President for only a month), Zachary Taylor (President for only 16 months); Andrew Johnson (because a hostile Congress reduced the size of the Court) and Franklin Roosevelt, during whose four years in office no justice has yet died or resigned.

3) To limit the Supreme Court’s power to declare laws unconstitutional, Senator Norris and many another liberal favor requiring more than a simple majority of the Supreme Court to hold a law unconstitutional (perhaps seven justices instead of five) in order to give Congress more latitude in legislating on points where the dispute is close on Constitutional questions. Only serious liberal objection to this proposal: at some future day, a liberal majority on the Supreme Court might not be able to invalidate laws abridging human rights passed by a reactionary Congress.

4) To amend the Constitution giving the Federal Government power to regulate labor, agriculture and industry—or whatever may be necessary to achieve the New Deal’s aims, Senator Ashurst, before his switch to the President’s plan, belonged to this school of thought. Its devotees last week were not much heard from, for it is generally admitted that any amendment which would grant such power would completely destroy state rights, would virtually give Congress power to do anything at all.

5) To make it easier to amend the Constitution. Last week Senators Wheeler and Bone proposed a Constitutional amendment, providing that if the Supreme Court declared a Federal law unconstitutional, Congress should have the power after the next general election to repass the law over the Supreme Court’s “veto” by a two-thirds vote. Technically this would not provide a new means of amending the Constitution, but practically it would achieve the same end. As Pundit Walter Lippmann pointed out, this would make the will of two-thirds of Congress supreme over the Constitution, provided they can get themselves reelected, possibly in a campaign where some other issue is paramount. Said he: “I am confirmed in this view by the spectacle of American liberals, so bent upon the attainment of their immediate ends that they are prepared to establish a system of government in which all liberty and all democracy in America would be staked on the outcome of one election. If liberal Democrats are willing to do that, what in the name of the Great Jehovah will the enemies of liberty and democracy do when they win an election?”

Political Anomaly. Franklin Roosevelt last week intimated to the press that he was surprised that the opposition to his proposal had not been more violent. If it had been, he might have been happier; a good resounding denunciation from the Liberty League would have been a great help to him. But he still had the situation apparently well under control. It was conceded that his leaders could whip his bill through the House. The Senate was divided into approximately equal thirds: one-third opposed to the bill (half of them Republicans), one-third in favor of the bill, one-third still on the fence. The Democrats who had declared themselves divided about 2-to-1 in favor of his plan. If by putting on pressure he could get the gentlemen on the fence (most of them Democrats) to split in the same proportion, victory in the Senate was certain.

But there was a weakness in the President’s position. The open opponents of his bill were strong if not in numbers at least in conviction, in experience and ability. The opposition included all 16 Republicans in the Senate, from Youngster Henry Cabot Lodge Jr. (chosen to read Washington’s Farewell Address* to the Senate on Feb. 22) to Oldster Borah, and they included such veterans as Hiram Johnson, Arthur Vandenberg and Gerald Nye. The Democrats aligned solidly with these included such gentlemen as Glass & Byrd of Virginia, Connally of Texas, Bailey of North Carolina, Wheeler of Montana, Clark of Missouri, Burke of Nebraska, George of Georgia, Van Nuys of Indiana.

No such array of talent or of enthusiasm could the President muster on his side. The best he had were Hugo LaFayette Black, Alben Barkley, Sherman Minton, Henry Ashurst, Robert La Follette. From these the level of enthusiasm and ability fell rapidly away. His reliable wheel horses Robinson, Harrison, Byrnes and others were still true, but their attitude indicated that at heart they were no more than lukewarm. Not yet forgotten was the promise of the Democratic platform, made last summer, that if the aims of the New Deal could not be accomplished within the Constitution an amendment would be proposed. Not yet cold were hopes that passing a bill to permit Supreme Court justices to retire on full pay (a bill that has passed the House and is up in the Senate) would achieve the President’s object without criticism. Chair-man Hatton W. Sumners of the House Judiciary Committee which sponsored this bill had no enthusiasm for the President’s proposal. One committeeman, Representative Emanuel Celler of Brooklyn, growled last week as he left the White House that he was opposed “to packing the Court with six new members.” If it was going to be packed he thought two new members were plenty.

Trump Cards for the President were Labor and Farmers who have two of the most powerful lobbies in Washington. Labor fears that the Supreme Court will invalidate the Wagner Labor Relations Law which is now before it, and hopes for still bigger & better favors if the Supreme Court is altered. Hence John L. Lewis, Sidney Hillman and Major George L. Berry all announced to the press that Labor’s Non-Partisan League approved the President’s plan 100%. William Green quickly approved for the A. F. of L.

Secretary Wallace talking to the press, remarked, apropos of future plans for crop control (see p. 14): “All these proposals in one way or another require Federal action. Nobody knows what the fate of any of these would be under the Constitution as now interpreted.” The National Grange declined to take the hint and declared it had doubts of the wisdom of the President. The more politically powerful Farm Bureau Federation which has prospered by playing ball with the New Deal delayed its answer.

Voice of the People. Preliminary results of a popular poll on the subject, published last week by the American Institute of Public Opinion, indicated on incomplete returns that although 61% voted for Franklin Roosevelt last autumn, 53% to 60% in various regions were opposed to his Court plan. Only one State, New York, gave it a majority (56%).

Hugh S. Johnson wrote last week: “In logic and law there is no answer [to the President’s proposal]. But Congress has been snowed under with objections mostly in error about what the proposal really means. Why? Because it took a crack at Mr. [Charles Evans] Hughes and because it was too damned slick.”

Charles the Baptist. It was just seven years ago that the U. S. Senate had another great debate on the powers and functions of the Supreme Court, on the question of “property rights v. human rights.” Occasion of that debate was the nomination of Charles Evans Hughes as Chief Justice. He was finally confirmed by vote of 52-to-26. Before that took place those who opposed him thoroughly aired their opinion that he was too closely connected with conservatism and entrenched wealth. Half the Senators who voted against him are now dead or retired, but of those who remain the great majority are today opposed to President Roosevelt’s Court plan: Borah, Glass, Connally, George, Hiram Johnson, Nye, Wheeler. Vice-versa, Senators Ashurst and Pat Harrison, both now pro-Roosevelt, were then both pro-Hughes, and Senator Robinson was paired in his favor. Only a few, notably Hugo Black and Bob La Follette, were against Mr. Hughes then and now.

After this demonstration of liberals against him, Mr. Hughes joined the Court and within a year not only did the Court begin to function with new celerity, but there came a number of liberal decisions, several of them by 5-to-4, such as that against Minnesota’s “press gag” law, with the new Chief Justice casting the decisive vote.

These peculiar circumstances as well as the fact that he is the spokesman of the Court contrived last week to make Mr. Hughes the central, if silent, figure of the Court debate. But the Chief Justice was the central figure for a still better reason: On the lips of every liberal who objected to the Court’s power was his famed dictum, “The Constitution is what the judges say it is.”

That statement was made 30 years ago when Mr. Hughes was serving his first term as Governor of New York and the sense of it in its context was: Since the interpretation of the Constitution falls upon the courts, to get an honest interpretation the Judiciary must be kept independent of political influence. He said: “I reckon him one of the worst enemies of the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the Judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assaults upon the courts.”

The truth is that his fellow citizens have had to revise their opinion of Mr. Hughes many times over. When he was a young lawyer in Manhattan 50 years ago he led the Men’s Bible Class of the Fifth Avenue Baptist Church, a job which he subsequently gave over to John D. Rockefeller Jr., but it was as a reformer that he first caught the public eye, as an inquisitor who with extraordinary ability exposed skulduggery in the gas and insurance businesses. It was in that role, sometimes referred to as “Charles the Baptist,” that he ran for Governor in 1906, and beat William Randolph Hearst.

In the snowstorm of March 4, 1909, at the inaugural of William Howard Taft, Governor Hughes was a fine figure riding down Pennsylvania Avenue on a white horse, with snowflakes bombarding his red whiskers. A year later Taft named him to the Supreme Court but the chill of that day seemed to stick in his bones. When 20 years later he was again nominated for the Supreme Court—the second man twice appointed to it*—he was quite a different figure. He had left the Court in 1916 to campaign unsuccessfully against Woodrow Wilson, a campaign in which he was called “The Human Icicle” and “The Animated Feather Duster.” He had served as Secretary of State to the unfortunate Mr. Harding and the curt Mr. Coolidge, had achieved a genuine-diplomatic triumph—the 5-5-3 naval limitation treaty which for over a decade put a stop to the competitive building of warships. He had also won himself the Washington title of “Chilly Charlie.” And he had quit statecraft to hire out his admirable talents as a lawyer to those whom liberals most dislike: great corporations. Liberals could not forgive him that even though he had in 1920 hired out the same talents to John L. Lewis, William Green and other officials of the United Mine Workers to defend them when they were charged with conspiracy to prevent the mining of coal.

By 1937 he had gone through one more confusing transformation. On the private side, Charles the Baptist, the human icicle and animated feather duster Chilly Charlie had become one of Washington’s favorite dinner guests. He and Mrs. Hughes go out only on Saturday nights and are dated up months ahead.† Still not a gregarious man, he is a definitely affable and agreeable oldster who chuckles much in whiskers, and the twinkle in his eye is really there. On the public side he has come to represent something new to liberals. Besides voting on the liberal side in pre-New Deal cases, he wrote the dissenting (liberal) opinion in the New York Minimum Wage Law case, and declined to go so far as the majority in throwing out the Guffey Coal Act lock, stock & barrel. Yet he is definitely in liberal disfavor, not so much because of his anti-New Deal votes in other cases, as for something they sense in his attitude.

His cause is not liberalism. The cause to which he is devoted is the Supreme Court, let the decisions fall where they may. If, like a good Baptist, he kneels before he goes to bed at night to pray, it is highly probable that his daily prayers include the final line of the invocation with which his court crier opens every session: “Oyez, Oyez, Oyez. . . . God save the United States and this Honorable Court.” There is doubtless a twinkle in his eye as he says it nowadays, for he is a statesman as well as a jurist and there is ample evidence that his mood today is not one of impotent bitterness. To the American Law Institute last May he said: “I am happy to report that the Supreme Court is still functioning.”

The Justices of the Supreme Court never, never, almost never publicly express themselves on questions of the day. But even a judge must have friends and acquaintances, and there are grapevines in Washington. How the Court is going to decide any given case is something that never can be found out, but how the Court feels is seldom a secret. It is not today. In his way, Charles Evans Hughes is perhaps the only worthy adversary that Franklin Delano Roosevelt has yet picked. The measure of that is that Mr. Hughes, knowing the President will very likely have his way, at least in part, regards the issue with a smile just as broad and rather more genuinely philosophic than that mustered by Mr. Roosevelt.

Nor is the attitude of Mr. Hughes much different from that of his Court. Its most conservative members, who personally dislike the President as acutely as he does them, were not unduly disturbed by the President’s proposal. It was no more than they expected of him. If there are any angry men on the Court today, they are liberal Justices. This violence offered to their Court is not their idea of Liberalism. As matters stand today, Mr. Hughes and his confreres are more united than they have been for years.

Three weeks ago as the guests left the State dining room after the dinner to the Judiciary, the President remained seated talking to Chief Justice Hughes and Justice Van Devanter. Senator Borah, catching sight of them, remarked, “That reminds me of the Roman Emperor who looked around his dinner table and began to laugh when he thought how many of those heads would be rolling on the morrow.” It was not a pood simile, for it appeared last week that even if they should be proscribed, the members of the Supreme Court intended to keep their heads.

*Excerpt from the Farewell Address: “If, in the opinion of the people, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an Amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free Governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”

*First was John Rutledge, whose second appointment in 1795 the Senate refused to confirm.

†Last Saturday night they dined at the Soviet Embassy. At table, the Chief Justice, in excellent form, chatted volubly with Mme Troyanovsky. Afterwards he had a more serious tête-á-tête with one of the guests, Senator Tom Connally (an opponent of the President’s Court plan).

More Must-Reads from TIME

Contact us at letters@time.com