28
SACRED BRICKS, STRANGE POLITICAL COATS OF ARMS
SACRED BRICKS, STRANGE POLITICAL COATS OF ARMS
THE TUSSLE OF ROOSEVELT
AND THE HIGH JUDGES
AND THE HIGH JUDGES
On the floor of Congress sit some fifty or sixty of its 435 members. There is no air of tension. The galleries are empty, save for a few regular gallery-veterans whom no one knows except by appearance. Only the occupants of the press gallery, who always have advance knowledge of White House messages, seem interested. Back of their gallery the telegraph companies are getting ready for a killing. They have ordered extra messenger boys for the flood of exultation and execration that will soon be on the wires. The Senate presents substantially the same picture.
The clerk, who has read thousands of messages, begins to read. A few representatives begin to listen. What's this?
It was a comprehensive message from President Franklin D. Roosevelt, suggesting certain court reforms, such as speeding up constitutional cases, protecting the government's interest where a constitutional issue is involved, enlarging the number of district judges, and altering procedural matters. These suggestions were considered necessary and have nearly all become the law by Congressional enactment.
What really raised tremendous opposition, however, was the proposal to increase the size of the Supreme Court—to "pack" the Court.
At the same time, serious disputes between labor and employer were arising over the country. Before the Court, but not passed on, were the Social Security, Labor Relations, and TVA acts. It was generally the opinion, before the controversy started, that all these, as well as numerous other acts, would be declared unconstitutional.
Everybody, including the justices of the Supreme Court, took part in the unseemly row. Of course, the justices did not take a public or open part (except the Chief Justice, who, in a letter to a favorite senator, rendered a public unofficial opinion for the first time in the history of the Court). But the justices were particularly humiliated over the fact that more justices might be put in the High Court. The situation was similar to the threatened "packing" of the House of Lords in England by Asquith in 1911. Asquith, Prime Minister, made the threat, but the Lords so detested the idea of more ready-made noble lords from the beer baronage and codfish aristocracy, to be created by His Majesty the King for packing purposes only, that they gave in to the House of Commons and quit blocking legislation.
During the Supreme Court controversy, various senators had secret conferences with Chief Justice Hughs and other justices. The story in Washington is that the senators politely suggested that if some of the High Court justices didn't change their opinions, the Court would surely get packed. Of these senators, one boasts of how, as a "liberal," he, Horatius-like, saved the country by getting the justices to reverse their opinions.
I do no vouch for the truth of all this. However, I predict Memoirs will be written some day, and the whole story will come out, unless the one or more senators who know the truth die early, and modestly.
In any event, after conferring with the senators, the justices did change their opinions, and reverse themselves on literally dozens of vital points of law. They showed they were better politicians than the politicians in Congress and much better than the President. The state Minimum-wage Acts, for years and years held unconstitutional; the Labor Relations and Social Security Acts, surely unconstitutional in the light of previous opinions; and numerous other acts—all were held constitutional.
And so the justices of the Supreme Court won their fight with the President—as the House of Lords had done in England in 1911 when it gave Asquith's Administration what it wanted. Had the Court not changed its opinions, it most assuredly would have been "packed."
The real question is this: Has any governmental question been settled permanently? No. That is because the real issues never came out, among them Congress's constitutional power to regulate the Court. It was a Battle of Symbols, of throwing Sacred Bricks at one another, a sort of War of the Roses where there was a loud cracking of skulls and huzzaing over strange political coats of arms, in which the aristocracy and the Royalty—lawyers, high justices, the President, Congress—never took the trouble to explain it all to the people.
Most unfortunate is the fact that few people understand the issues, but have decided opinions, and that the confusion in government still exists. The real issue in so far as the judiciary is concerned is whether the Supreme Court should have supremacy over all other branches of government. Had the Court been increased in size, the settlement would have been only temporary. But on the other hand, since the Court changed its opinions to keep from being increased in size, that settlement is still only temporary, for we do not know whether the judges will stay put as the Lords have in England.
Therefore, the issue will inevitably bob up again. As the public forgets, the judges may change their opinions again, enter the field of legislation, and declare laws unconstitutional merely because they do not like them.
Hosts of people are blindly prejudiced on the Court issue. They refuse to view it as a simple question of whether or not a court shall be permitted to exercise legislative power. They refuse to see that it is a question of the effective functioning of the democratic system.
For example, suppose that during the last years of some administration, by virtue of quite legal vacancies, a President fills or "packs" the Court with "conservatives" (as Adams did just before Jefferson became President). Obviously, an incoming "liberal" administration—which might attempt to use other quite constitutional methods to meet serious economic, social, and political problems—might be blocked by a partisan Court. Whenever the will of the people, through their elected administration, whether liberal or conservative, is frustrated or vetoed by the Court, democracy has broken down.
In the present turmoil of the world we want effective government. We do not want dictatorship, but we know that to forestall dictatorship we must have a responsive, responsible government. It is as necessary for business as it is for labor. Constant interference in legislation by the Court affects the stability of the economic system and nullifies representative government.
The clerk, who has read thousands of messages, begins to read. A few representatives begin to listen. What's this?
It was a comprehensive message from President Franklin D. Roosevelt, suggesting certain court reforms, such as speeding up constitutional cases, protecting the government's interest where a constitutional issue is involved, enlarging the number of district judges, and altering procedural matters. These suggestions were considered necessary and have nearly all become the law by Congressional enactment.
What really raised tremendous opposition, however, was the proposal to increase the size of the Supreme Court—to "pack" the Court.
At the same time, serious disputes between labor and employer were arising over the country. Before the Court, but not passed on, were the Social Security, Labor Relations, and TVA acts. It was generally the opinion, before the controversy started, that all these, as well as numerous other acts, would be declared unconstitutional.
Everybody, including the justices of the Supreme Court, took part in the unseemly row. Of course, the justices did not take a public or open part (except the Chief Justice, who, in a letter to a favorite senator, rendered a public unofficial opinion for the first time in the history of the Court). But the justices were particularly humiliated over the fact that more justices might be put in the High Court. The situation was similar to the threatened "packing" of the House of Lords in England by Asquith in 1911. Asquith, Prime Minister, made the threat, but the Lords so detested the idea of more ready-made noble lords from the beer baronage and codfish aristocracy, to be created by His Majesty the King for packing purposes only, that they gave in to the House of Commons and quit blocking legislation.
During the Supreme Court controversy, various senators had secret conferences with Chief Justice Hughs and other justices. The story in Washington is that the senators politely suggested that if some of the High Court justices didn't change their opinions, the Court would surely get packed. Of these senators, one boasts of how, as a "liberal," he, Horatius-like, saved the country by getting the justices to reverse their opinions.
I do no vouch for the truth of all this. However, I predict Memoirs will be written some day, and the whole story will come out, unless the one or more senators who know the truth die early, and modestly.
In any event, after conferring with the senators, the justices did change their opinions, and reverse themselves on literally dozens of vital points of law. They showed they were better politicians than the politicians in Congress and much better than the President. The state Minimum-wage Acts, for years and years held unconstitutional; the Labor Relations and Social Security Acts, surely unconstitutional in the light of previous opinions; and numerous other acts—all were held constitutional.
And so the justices of the Supreme Court won their fight with the President—as the House of Lords had done in England in 1911 when it gave Asquith's Administration what it wanted. Had the Court not changed its opinions, it most assuredly would have been "packed."
The real question is this: Has any governmental question been settled permanently? No. That is because the real issues never came out, among them Congress's constitutional power to regulate the Court. It was a Battle of Symbols, of throwing Sacred Bricks at one another, a sort of War of the Roses where there was a loud cracking of skulls and huzzaing over strange political coats of arms, in which the aristocracy and the Royalty—lawyers, high justices, the President, Congress—never took the trouble to explain it all to the people.
Most unfortunate is the fact that few people understand the issues, but have decided opinions, and that the confusion in government still exists. The real issue in so far as the judiciary is concerned is whether the Supreme Court should have supremacy over all other branches of government. Had the Court been increased in size, the settlement would have been only temporary. But on the other hand, since the Court changed its opinions to keep from being increased in size, that settlement is still only temporary, for we do not know whether the judges will stay put as the Lords have in England.
Therefore, the issue will inevitably bob up again. As the public forgets, the judges may change their opinions again, enter the field of legislation, and declare laws unconstitutional merely because they do not like them.
Hosts of people are blindly prejudiced on the Court issue. They refuse to view it as a simple question of whether or not a court shall be permitted to exercise legislative power. They refuse to see that it is a question of the effective functioning of the democratic system.
For example, suppose that during the last years of some administration, by virtue of quite legal vacancies, a President fills or "packs" the Court with "conservatives" (as Adams did just before Jefferson became President). Obviously, an incoming "liberal" administration—which might attempt to use other quite constitutional methods to meet serious economic, social, and political problems—might be blocked by a partisan Court. Whenever the will of the people, through their elected administration, whether liberal or conservative, is frustrated or vetoed by the Court, democracy has broken down.
In the present turmoil of the world we want effective government. We do not want dictatorship, but we know that to forestall dictatorship we must have a responsive, responsible government. It is as necessary for business as it is for labor. Constant interference in legislation by the Court affects the stability of the economic system and nullifies representative government.
