In Blood and Ink: The Life and Documents of American Democracy

Scene—Judea. The Lord has made a prayer, saying, give us day by day our daily bread. He has denounced the Pharisees and the High Priests, warning them to take heed that their vaunted "light is not darkness." And

Then answered one of the lawyers, and said unto him, Master, thus saying you reproachest us also.

And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.

Woe unto you! For ye build the supulchres of the prophets, and your fathers killed them. . . .

Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered. (Luke 11, 45-52.)

As I have tried to emphasize throughout, judges and lawyers have purposely made law difficult to understand; nor do they welcome people who try to understand. Worthy and good people ask no questions and respectfully bow to the symbols.

It has been true always, in all civilizations. It is not a question of sin or virtue; the lawyers and the judges have necessarily represented the people who have the money with which to pay fees. [footnote: "The leading lawyers of the United States have been engaged mainly in supporting the claims of the corporations: often in endeavoring to evade or nullify the extremely crude laws by which legislators sought to regulate the power or curb the excesses of corporations." Mr. Justice Louis D. Brandeis (1905) before going on the bench. "Actually, of course, the courts are available in proportion to one's ability to pay for their use, but legal theory has little to say about this stark reality. The lawmen know that the courts are accessible only to those able to bear the expense of litigation but legal theory treats this fact as an unfortunate accident rather than a fundamental characteristic of the legal institution." Prof. Edward S. Robinson, Yale University, Law and the Lawyers (1935).]

From the legal fraternity have come some great teachers of "The Law"—that is, of a way of life. These great teachers have assisted the people in self-government, in their desire to better their lot. But such champions of human rights have generally been persecuted, hated dissenters, who became great only when they were laid away in the cold ground. Mr. Justice Brandeis, long a dissenter, is just about now beginning to be accepted as respectable—after his resignation.

In our law schools for the past half century, youngsters have been told that they will soon be "officers of the court," legal vestal virgins, as it were. The Supreme Court is pressure-pumped into their minds as a sort of theocracy that will benignly hand the people (if they only wait long enough) "decisions" (tables of Higher Law) as to whether their wishes and needs are unconstitutional (sinful, in violation of eternal law).

I do not think I exaggerate this. Picking out at random a few textbooks, I found these references to the Supreme Court: "High priests of the law," "crowning marvel of wonders," "the real rulers of this country are the justices of the Supreme Court," "there is nothing to censure" about the justices, they have more "profound learning" than other learned groups, and their writing, as against that of literary men, is a model—"the best style of English language."

In similar vein, some professors of law expound the notion that the High Court saves the people from themselves, from their own hasty follies.

In speaking over the country, I am often asked whether a judge, since he has a high salary, a job for life, and no responsibility to the people—isn't more honest and non-partisan than an elected official. This deserves a full answer. In the first place, justices are not non-partisan, for the simple reason that they are human beings. They have interests and convictions even as you and I. Chief Justice Taft frequently advised President Coolidege upon political matters; other justices have been in the thick of high and low politics. Our present Chief Justice resigned from the Court to run for President. In the second place, if a lifetime job without responsibility makes a man "honest," then we should elect congressmen for life and double their salaries to equal the $20,000 the justices receive. Quite naturally, no one would agree to that. And finally, if the people cannot trust their elected representatives, but must rely entirely on the views of nine men, the people do not trust themselves.

Selfish interests have thoroughly implanted the belief that all politicians are crooked. Using this smoke screen of persistent propaganda against representative government, these same selfish interests have been able to get a lot of crooks in office, making politics for the great majority of honest men in public office a hard and cruel game. Millions of people have been taught that politics is of itself "crooked" and therefore to be shunned. As a result, they evade the duties of citizenship, giving the crooks boundless opportunity to misrule and plunder the people themselves. This subltle maneuver has produced a widespread contempt for representative government.

In the same breath these selfish interests have been engaged in creating reverence for the judiciary. They have built the judge up as a mysterious and sacred oracle, whose words are almost Holy Writ. Although he is completely isolated from the general run of people and their everyday problems of jobs and crops, rent and bills, they would give to him the role of passing upon the people's legislation.

The background of the average judge is usually big corporation practice. There is nothing evil or dishonest about this, but his ideas must necessarily be influenced, at least to a certain extent, by his background, interests, associations, and training. His viewpoint of who should control or own the land and its resources is bound to be influenced by what he did before he got to the bench. Furthermore, once he gets on the bench, he is not likely to keep pace with economic and social change; for he has his lifetime job, no responsibility, and comparatively few associates (generally of the extremely conservative variety). No high justice would dare be seen in too progressive company, much less let it be known that he had even conversed with a "radical."

I believe it essential that we have a powerful Supreme Court, that it should be respected. But I do not think the people should respect the Court any more than they do themselves, nor the men whom they elect. If blind reverence or greater respect is given to a man with an appointive job than to a man with an elective job, it is an admission that Democracy and Representative Government are failures.

The members of the High Court should not be regarded as gods whose actions are always perfect, but as men who sometimes make mistakes.

It is not difficult to debunk the myth of the Court's superhuman wisdom and sense of justice.

Law, as taught and argued, is technical and often tiresome. Frequently it is a mumbo-jumbo of judge-made "doctrines." For that reason I shall not attempt a legal analysis of a lot of Court decisions. Their income tax decisions, however, reveal pretty clearly just how selfless and godlike these men of the High Bench are.

Throughout the history of the Republic, the Court had maintained that only land and capitation taxes were direct taxes and it had held the Civil War income tax law constitutional. Then, in 1894-1895, it declared the income tax unconstitutional. This disturbed the people, because it was absolutely necessary to have an income tax in order to run the government, at least in time of financial stress. So an income tax amendment was adopted by the people in 1913—after fifteen years of agitation, and the loss of billions in revenue. The amendment was carefully worded to make sure that everyone paid an income tax and that no source whatever of income would be exempt. Congress was empowered to lay taxes on income "from whatever source derived."

The justices of the Supreme Court, however, promptly exempted themselves and the other federal judges from taxation on their salaries, claiming the Constitution provided that their compensation (set by Congress) "should not be diminished" during their term of office. Of course, Congress was not in any way diminishing their pay; the people had passed an amendment to the Constitution for a tax "from whatever source derived." The justices were simply required to pay taxes like any other citizen in their bracket—no more.

But were members of the High Court to pay taxes like mortal men? No! This would reflect on their integrity, they asserted. This, they said, might affect their "independence." So they, subject to no laws on earth except those which they choose to apply to themselves [footnote: "The only check on our own exercise of power is our own self restraint"—Justice Stone in U. S. vs. Butler, 297 U. S. 1 (1936); "We live under a constitution, but the constitution is what the judges say it is"—Chief Justice Hughes, before his appointment to the Supreme Court.], decided that all other federal officials, from the President through congressmen on through the last postal clerk should pay, but not the judges of the Supreme Court or of other federal courts.

The Court went further. Although one of the principal reasons for adopting the amendment was to make certain that Congress could stop all loopholes through which income from "any sources" could escape, the Court has exempted the bonds of cities and states; it has gone even further and exempted all regular city and state employees. Even employees of the Water Department in New York, and hence all similarly employed in America, were exempted. This meant practically all manner of state, county, city and school employees, of course.

Great concentrations of wealth are exempted by exempting the bonds of cities and states. Bernhard Knollenberg, writing in Harpers, November, 1938, says, "This situation, especially the tax-exempt bond aspect of it, is intolerable." And, I might add, the exemption of the members of the Court themselves by themselves from their constitutional duty to pay taxes, is also intolerable. [footnote: As this goes to press, the Court is again reversing itself—this time to the good. All these exemptions are being removed. From a reading of the decision, however, it appears that the Judges' salaries are still exempt. The point is that Congress' right to tax from "whatever source derived" should not have been interfered with.]

From the history of income tax as well as the history of the Fourteenth Amendment, we may draw a conclusion: There is no sense in passing an amendment if it is to be knocked out by the Court afterward. Although the Income Tax Amendment specified (and the debates in Congress made the intention clear) that Congress was to have the power to tax incomes "from whatever source derived," the Court held that when the people adopted the amendment they did not mean what they said, and that sources previously immune were still immune!

If the above is not enough to purge completely any feelings of reverence for the Court, a brief glance at the lives and personalities of the justices should have no one on his knees. For my own satisfaction I have carefully checked the lives of some twenty justices, and can safely make a few generalizations. I do not do this with any intention of detracting from the respect due them as honorable, dignified and conscientious men.

Of the twenty I checked, a few were brilliant men. A fair proportion were average politicians; two quite mediocre. I think you will agree that one was a mediocre fellow, for he had been an elected and defeated politician—a mere congressman, or representative before he was "raised" to the Bench. Still another ran for Congress, but never got elected.

Some of the justices, I found, had read practically nothing but law since they had left college forty to fifty years before. Several had, for many years before they were appointed to Court, been away from vital contacts with the people. Some had worked all their lives for particular coporations or railroads. With few exceptions none of them was well informed on business itself, soil and water conservation, agriculture, or the other serious problems of our day. Certainly no one of them was divine infallibility come to earth.

People justly classify the judges as they do themselves—as "liberals" or "conservatives." But a pronounced exception is Mr. Justice Stone, on the Court today, who is often referred to as a "liberal" because he does not declare as many New Deal acts unconstutional as do the "conservative" members. As a judge he is neither "liberal" nor "conservative"—he is a judge who believes in the Court's minding its own business, and not interfering in legislative matters. He is, in fact, personally a Republican Conservative. But he is one of the few justices, liberal or conservative, who in recent history has not injected his own prejudices into an opinion.

An ideal Court would be composed of men of the general stamp of Justic Stone—men who did not allow their personal views and prejudices to influence the opinions they wrote. But obviously that is asking too much. The judges will continue to write their views into their opinions, and so long as appointments are made from among wealthy corporation lawyers, we shall continue to get conservative or reactionary opinions.

In recent years the Court has gone far beyond its powers, as it did in the Dred Scott decision which the people had to reverse with a long, bloody and costly war. And remember that the people have always reversed the Court when it handed down a decision that reversed one of their own. They did it on the income tax, and numerous other issues. They have done it again recently in social security, minimum wages, labor relations, TVA, and other cases involving commerce and business.

Of course the great and high functions of the Court should be preserved. But certainly, the Court should retire from the field of legislation and stick to settling cases, preserving the liberties of the people, and declaring acts of states unconstitutional when necessary. But neither the Court, Congress, nor the President will mind their own business unless the people stay awake and demand that all branches of government serve always and only the general welfare of the people.