In 1932, following deep economic and mental depression, Herbert Hoover was defeated for re-election to the Presidency. It was a protest vote; Mr. Hoover was merely being voted out. The man who got his job was Franklin D. Roosevelt.

Banks were crashing to the right and the left. Business on a big nation-wide scale was going broke. There were nobody knows how many millions of unemployed; great numbers of them were traveling aimlessly about on freight trains. People still remembered the eviction of the "Bonus Army"—eviction by tear gas and military force—and they were talking of "revolution," bloodshed, and disorder.

Into this scene, with a swiift and dramatic rush, galloped Roosevelt. He proclaimed the bank holiday (clearly an unconstitutional exercise of power but happily accepted all over the country) and followed up with other extraordinary measures. Congress passed laws without reading them, big money was spent, relief was given to businessmen and bankers (who were not heard to complain) and finally relief was extended to the people themselves.

Then Congress enacted the National Industrial Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Both affected the lives of practically every living American. Good or bad, these (and other) measures were the new Administration's method of meeting the depression. The Administration was responsible.

Then the Supreme Court knocked out the NRA and the AAA. The NRA was becoming an unpopular flop. It is generally believed that had the cases testing both laws been argued at the height of their popularity, the Acts would have been declared constitutional. In any event, they were knocked out, and when they were, it nearly knocked out the new Administration, or what by then was generally known as the "New Deal."

The High Court continued to knock out the laws of Congress. A majority of the justices seemed to line up against every law of the new Administration as soon as it reached the Court. It looked as though they had decided to declare unconstitutional any law that conflicted with their own views of what was good for the American people.

As this book is being finished, it is possible to appraise those hectic years with some detachment. Since then have come the Supreme Court controversy (which we shall discuss a little later), various reversals of opinions by the justices of the Supreme Court, and some defeats for the Roosevelt Administration.

It is desirable to make our appraisal from a viewpoint of government efficiency and responsibility. This will necessitate examining the powers of the Supreme Court itself—a tough and unpleasant job. For the people of the United States probably know less about the Constitution and the Supreme Court than any other important subject. Furthermore, many of them have for the Court and its members a blind adoration that makes impossible a commonsense examination.

Controversies over the Supreme Court are about on the level of backwoods religious controversies of a hundred years ago. I have spent some time reading these old controversies—bitter, cruel affairs in which one denomination fell out with another over some "doctrine" as to how the soul could be saved. The arguments became fantastic, unreasonable and senseless. And today that same fanatical note creeps into many discussions of the Supreme Court, even among well-educated lawyers.

We need, then, to look at some historical facts about the High Court. This inquiry is necessary because the Supreme Court has blocked legislation; the people should know why and under what powers the court acted.

The Supreme Court has no express power under our Constitution to declare an act of Congress unconstitutional.

However, the Court has taken the power and has exercised it. Dr. Charles W. Gerstenberg says in his textbook, American Constitutional Law, "Severe criticism has at times been leveled at the Court's arrogation of such power, but its exercise has nevertheless been acquiesced in both by the people and by the other departments of government." Professor Willis in his Constitutional Law of the United States, says that the Supreme Court is supreme over the other branches of government and that "this doctrine is entirely originated by the Supreme Court."

The Court today has the power, though there is no provision for it in the Constitution. But if the American people should withdraw their acquiescence, the power would no longer exist.

Lord Bryce in his American Commonwealth stated the accepted theory when he said, "Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is any discrepancy between them." Certainly such procedure was not followed in the NRA and AAA cases; for if they were set side by side with the Constitution, it would be hard to find any discrepancy. In fact those cases, as well as many others, were a good deal like the cases under the Fourteenth Amendment—the High Court had to put a heavy strain on its imagination to declare unconstitutionality.

Admitting for the moment the power of the Court, let us examine the Constitution. We find that it gives the Supreme Court original jurisdiction only in those cases affecting ambassadors, ministers, consuls, and states. Any other case must be brought to it from lower courts—statutory courts created or abolished at will by Congress—and such appellate jurisdiction is only

with such exceptions and such regulations as the Congress shall make. [See p. 259, Article III, Section 2, paragraph 2.]

In other words, in the cases brought up to the Court, Congress can make whatever exceptions and regulations it cares to. Should it care to except Social Security or TVA, it could do so. Whether Congress would do it is another matter. But it is a fact that the Judicial Code, enacted by Congress at its first session in 1789, actually regulates the business of the Supreme Court. Regulations affecting federal Courts and the Supreme Court are made from time to time by Congress. They are considered amendments to the Judicial Code.

The power of Congress has been claimed and exercised from the first. Alexander Hamilton stated it quite clearly when he was persuading the people to accept the Constitution. He went into detail (Federalist No. 81) as to the powers of the Supreme Court because the people feared it might exercise excessive powers. Objectors were pointing out that in England the people have the final control through Parliament, but that in America the Supreme Court could make usurpations, and the people would be without remedy.

Hamilton demolished this argument completely. He laughed at it, scorning the idea of the Supreme Court's having any such power.

"In the first place," he said, "there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution."

He remarked that of course the judiciary might be final in a given case, but that for all future ones, the rules could be changed. Here are his exact words:

"A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases."

This means that in respect of the Schechter case, in which the NRA was declared unconstitutional, Congress could have prescribed a new rule for future cases and thus continued the NRA.

Hamilton assured the people that although the Court may occasionally err, the national legislature can immediately correct it. He assured them that the judiciary would be weak, subject to an important "constitutional check"—the power of Congress to impeach the Court at will. "This is alone," he added "complete security."

Mr. Hamilton proceeded to examine the Constitution in reference to what it actually says concerning the powers of the Supreme Court:

"We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur.

"In all other cases of Federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than appellate jurisdiction, 'with such exceptions and under such regulations as the Congress shall make.'"

This bright young man, who was later to become the first Secretary of the Treasury and was to die from a bullet fired by Aaron Burr, was always a clear writer, and not much given to repetition. But in the Federalist he continued to repeat himself on the power of Congress to make exceptions and regulations respecting the power of the Supreme Court. A few words after the foregoing quotation, he says:

"To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. . . . This will enable the government to modify it in such a manner as will best answer the ends of public justice and security."

Once again he repeats "that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, and all cases referred to them, both subject to any exceptions and regulations which may be thought advisable." [No judge or competent lawyer has ever denied this. In the great constitutional celebration of the three branches of the federal government held in Washington, March 4, 1939, Mr. Chief Justice Hughes, speaking of the federal judiciary, told Congress: "We are a separate, but not an independent arm of the government. . . . You, not we, determine the establishment and jurisdiction of the lower federal courts and the bounds of appellate jurisdiction of the Supreme Court. . . . You, not we, have the purse and the sword. . . . What the people really want, they generally get."]

And then he concludes, "It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom."

I have stressed these assurances of Hamilton because not much is said about them today. And obviously, since the Constitution is quite clear on the subject, the people should know and study them.

No one, not I or anyone else, wants to take away the Court's power as a High Court of Justice. But since we talk so often about checks and balances, here is something to consider. The direct method of checking the Court by regulating its business has never been used by any recent administration, though it was used just after the Civil War and acknowledged to be lawful by the Supreme Court.

Keeping this in mind, let us return to the year 1937.

After the NRA and AAA decisions, the Supreme Court continued to knock out the laws of the Roosevelt Administration. The judges were making it impossible for the government to carry out its responsibility to remedy economic conditions by settling labor disputes (such as sit-down strikes), by lending money to business, by giving relief to the unemployed, by operating the PWA or the TVA, or by carrying on numerous normal economic functions of a modern government.

Suddenly, a totally unprepared Congress received the note of the President of the United States asking it to increase the size of the Supreme Court of the United States. Few were on the floor of either House of Congress when the message came. The newspaper reporters had the information about an hour ahead and were jammed and packed in the press galleries of both Houses.

But let us move to the floor of the House of Representatives, and finally into one of the wildest, weirdest fights that we have ever had.