Rare Periodicals

The Supreme Court, The Constitution and the People.pdf

Media

Part of The Lawyers Journal

extracted text

TMcla(,Urrs J~ # i/r/ ;:t,,.yTHE SUPREME COURT, THE CONSTITUTION AND THE PEOPLE Ry Josiah W. Bailey, United States Senator, North Carolina The Am<'rican people have within the last few days been suddenly confronted with :\ new and deeply disturbing quc3ti:Jn: The proposition has beC'n put forward under alarming circumstances to increase the number of Justices of the Supreme Court from nine (the preser1t number) to fifteen - provid<:d those Justices 70 yea.rs of age or more shall not retire. There are six Justices of the Supreme Court who fall within the tern1s of this bill. The effect is to notify each of them that if he remains on the Bench another Justice will b:! appvinted to off-set his pres1;:nce, because of the alleged infirmity of agl'. If he retires another will replace him. It looks to a reconstruction of the Supreme Court at one stroke. It is either a judicial recall or a judicia.I neutralization. It implies even more than reconstruction of the Court. It predicates a new version of the Constitution. What are the circumstances in which this far-reaching change in the fundamental structure of our Government is put fo1 wnrd? UNIVERSITY 01' Tfl r l'lllLll ' l'lNI!;~ LlllRAHY / REASONS FOR 1M£ f>1tE!mENT'S PLAN AND THE REMEDY By Homer S. Cummings, Attorney-General of the United States Only nine short days have !>assed since the President sent to the Congl'f$S t'ecommendations for the organization of the Federal judicia.ry. Yet in that brief time~ unfriendly voices have filled the air with lamentations and have vexed our i!ars with an insensate clamor calculated to divert attention from the merits of his proposal. Let us, therefore, disregard !or a moment these irrelevancies and di1·ect our attention to a. dispassionak considoratfon of the reasons lor the action taken by the President and the remedy he suggests. From thP beginning of President Roosevelt's first administration I have been in intimate contact with him with reference to ways and means of improving the administration of justice. Literally thousa.nds of proposals have been considered. In addition, the critical literature of the law has been searched, and the lessons of experience hnve Leen canvassed. Out of it have com·e certain WPll-defined conclusions: First: In our Federal courts the law's delays have become First, we must take note of the tact that the Court has with- intolerable. Multitudes of cases h&ve been pending from five to in t.he last two years frund it necessary to hand down an annual number of opinions holding acts, or portions of acts, of Congress unconstitutional; and that in every instance it has sustained the historic interpretation of the Constitution. If the present Court has been wrong, then the Court has been wrong for seventy-five years or more. Second, that these acts were passed by the Congress at the instance of the President. Third, that when these measures were under consideration . by the Congress, many Representatives and Senators were troubled on the question of . their constitutionality. Fourth, that in one instance the President sent a letter to a Representative advising him to disregard his doubts as to the con. stitutionality of a bill, however reasonable. Fifth, that many members of the Congress felt constni.ined to waive for the time the question of constitutionality and leave the matter to the Court. That is, instead of bearing their part of the brunt of proposed legislation as beyond the power of the Congress, not a few of its members thought bes~ to pass the whole burden to the Court. Let it be said that this was done under the impulses of a sem:e of profound emergency, and with much re.. gret on the part of some. Sixth, that the effect of this procedure was to subject the Supreme Court to widespread criticisn1 and not a few bitter attacks. The Court was described as an oligarchy; it was ~poken llf as exercising the veto power; careless men said even that it haci nullified acts of the Congress; - none of which accusations 4re true; - and even a. scurrilous and ribald book was printed in which the highest court in our land, the highest on earth, respected always and everywhere, made up of learned and venerable men long known in our public life, was held up to scorn and con.tempt. I have read this book Thue is more of falsehood and less of truth in it than in a.ny :oimilar number of pages of which I have had knowledge these fifty yean I have been reading. And seventh, we must bear in mind that in his address to the Congress on January 6th, the President complained of the decisions of the Supreme Court and made some suggestions, the full import of which did not appear at the time. This is the general ba.clcground in which legitlation is proposed, which, if pas..sed, would either enlarge the Court by six new members or cause six present: members to retire and be re. · ten years. Rather than resort to the courts many persons submit tCl dctS of injustice. Inability to secure a prompt judicial adjudication leads to improvident and unjust settlements. Moreover, thf' time factor is an open invitation to those who are disposed to institute unwarranted litigation in the hope of forci>'lg an ac!justment which would not be secured upon the merits. Furthermore, the small business man or the litiga.nt of lim~.tcd rne&ns labors under a grave and constantly increasing disadvantage because of his inability to pay the price of justice. I do not stress these matters further, because the congestion in our courts is a matter of common knowledge. Second: Closely allied with t.his problem is the situation created by the continuance in office of aged or infirm judges. For eighty years Congress refused to grant pensions to such judges. Unless a judge was a man of independent means there was no alternative open to him except to retain his position to the very last. When, in 1869, a pension system was provided, the new legislation was not effective in inducing retirement. The tradition of aged judges had become fixed, and the infirm judge was often unable to -perceive his own mental or physical <lecreptitude. In· deed, this result had been foreseen in the debates in Congress at that time. To mQet the situation the House of Representative<; had passed a measure requiring the appointment of an additional judge to any court where a judge of retirement uge declined to leave the bench. However, the pi-oposal failed in the Senate. With the opening of the hventieth century similar pzoposals were brought forward. The justices of the Supreme Court, however, protested and the project was abandoned. When William Howard Taft, n former Federal jlldge, left the Presidency, he pub.. lished his views. "Therj! is no doubt," he said, "that there are judges at 70 \vho have ripe judgments, active minds a.nd m\lch physical vigor o.nd that they are nble to perfarm their judicial duties in a very satisfactory way. Yet In a majority of cases when men come to be 70 thf'y have 16st vigor, their minds are not as active, their ~11ses not M acute and their willingnes:e to -undertake great labor ls not so great as in younger men and as we ought to have i~ judges who are to perform the enormous task which falls to the lot of Supreme Court justices." In 191 3 Attorney General M:cR+>y11olds (now a justice of the August 31, 1954 THE LAWYERS JOURNAL 873 THE SUPREME COURT .. . placed b)r six new members; in either ~en giving the President leave to 3ppoint six new Justices and so reconstruct at one stroke the highest Court in our land;-· indeed to tear ,lown the Court as it is and create a new Court in its stead - an a.ctio:i without precedent in our long history. What are the grounds upon which this astonishing action is proposed? In his messl\ge to the Congress presenting the legislation, the rresident undertook first t\:i argue that the Court wa:oi behind with ils work. But the fact is against him here. T~e Court is up with its work. His own Attorney Gen<"lra.I has n.<idc his .'.l.nnual report for the fiscal year ending last July 1st. In this report on page 9, the Solicitor General of the United States, "'ho represents the Government before the Supreme Court, says: - I quote: 1'T/ie work of the Court is curre11t Mid cases art1 hu1rd as so<rn (lfter records have been vrinted (rnd briefs can be prepared." This statement ends the a.rgurnent that this r.idical change is proposed m order l'o e>;pedite the detnmination of <:ases. It is conclusive testimony from the President's own witness. It i'!I moreover a matter of record. -Th e President argued in th~ second instance that· the Court had declined t.o allow petitions in many cases, and t hat this indir.ated necessity for six additional Justices. As to this let. Uli hear his Solicitor Generu.I, in the same Report, page 13, in w.ords as follows: I quote"A very large majority of the cases on the appellate docket do not possess sufficient merit to warrant consideration on the merits. • • • Many petitions for writs of certiorari <i.e. appeals) :ire filed which in the light of setl1ed practice m-..ist be r1:garded as entirely without merit." To be sure tha.t is a sufficient negation of the second of the alleged facts upon which the President seemed to base his recommendation. If petmons are without merit they ought to be df'clined and the reason for it lies in the petitiofl'!J not the Court. And how, anyway, could fifteen Justices hear and decide cases more quickly than nine men? As a rule the larger the number of participants in a discussion the longer a.nd more difficult U1e consideration. It is easier for nine men to agree than for fifteen. Just who misinformed the President I do not know. That he wa, not correctly informed in these essential matters of fact is only too plain from official statements I have quoted from his Solicitor General, and published in the latest Annual Report of his Attorney General. The third consideration i!Ubmit.'ted by the President in supIn the earf11 part of 1937, President Franklin D. Roosevelt laid before the Cotigress of the United States a comprehemtive plan for tht reorganization of the federal judiciari1. Dubbed by the American press as R oosevelt's " court-packing plan," the 7>residential measure's 11wst co-ntrt>i•ersial feature was that u·hich con.(erned the Supreme Ce>urt. Contained in the President's message and the bill which was subsequently filed in the Senate wa..s the provision for the appointment of an additional justice for every Supreme Court justice who failed to retire within six nwnths following the age of 70. The total number 1 of justices under this provision was not, however, to eueed 15. Pre!lident Ro"J:levelt's "court-par.king" bill came in the wake of REASONS FOR THE PRESIDENTS ... Supreme Court) in his annual report for the Department of J 1,1stice urged that the Congress adopt a similar measure. Some judges, he argued, " have remained upon the bench long beyond the time when they were capable of ade<1uately discharging their duties, and in consf'fluence the administl'ation of justice has suffered. I suggest an act providing wben any judge of a F l:deral court be.. Jew the Supreme Court fails to avail himset! CJf the privilegt- of retiring now granted by lz.w, that the President be required, with the advice and \!onsent of the Senate, to appoint anothel' j udge, who shall pr~side over the affairs Of the court :).,nd have precedence over the older one. This will insure i:.t all limes the presence of a jlldge sufficiently active to discharge promptly and ade-. qu::i.tely the duties of the court." Jn 1914, 1915 and 1916, Attorney-General Gregory renewed his recommendation. Solicitor General J ohn W. Davis aided in drafting legislation to carry out the proposal. Instead of following this advice, however, the Congress in 1919 p:i.ssed a measure providing that the President "may" appoint additional oistrict and cil'C'Jit juciges, but only upon a findin~ t hat the incumbent judge over 70 ''is unable to discharge efficiently all the duties of his officE' by reason of mental or physical <lisability of permanent character." This legislatior. failed of its purpose, bi:_cause it was Indefinite and impossible of practical a.pplicafion. The unsatisfactory solution of 1919 had been endorsed by for mer Justice Charles Evans Hughes, but in 1928 he made this further observation; ··some judges," he pid in pa?t, "have stayed too long on the bench. It is extraordinary how relucta..nt aged judges are to retire and to give up their accustomed work. 1 agree that the importance in the Supreme Court of avoidirg the risk of having judges who are unable properly to do their work snci yet inl!il>t on remaining on the bench is too great to permit chances to be taken, and any e.ge &elected must Pe somewhat arbitrary as the time of the failing in mental power differs widely." Despite this long history of effort to obtain some measure of relief, we are now told in certain interested quarters that age ' J.aa no relation lo congestion in the courts. The verdict of ex~ pericnce and the testimony of those eminently· qu.ilified to :;peak from actual service on the bench a":"e ignored. Third: Attacks upon the constitutionality of measures enacted by the Congress have burdened tht courts. The powers of government are suspended by the automatic issuance of injunctions commanding oCficers nnd agents to cease enforcing the laws of the United States until the weary round of litigation hn.s run its course. In the uncertain condition of our constitution:;! Jaw it is not diHicult for th1: skillful to de\'iSE' plausible arguments and to raise technical objection!! to almost any form of legislation that may be proposed. Often times drastic injunctive rc,medies are appli~ without a number of Supreme Court dedsions invalidating the adminisfra. lion's "'New Ue(J./" mea.mre;;. Jn 'llJ r•ther pl!riod of American history had the gap betwee11 the /1Jg1slative and ezecu'tive departments un the one ha11d and the jm.{iciary 011 tht othe; widened to unusual 71roportfons. Of !5 ma.jor deci!iions relating to New Deal legislation or Mtivitirs, i ?1 the 1Jeriod from 1935 to 19.'17 alone, the Suprrme Court supported the administrfltion 011l11 14 limt!s b;tt declaired its acts 1t~1ronstituticmal 11 tinles. T11vicai of important administrn. lion measures ntled 1rnconstitutional by the Supreme Court wf'rf! the National l rulltstrial Recov'!r11 Act and the Agricultural A djustment Act - ;;pe.arheads of the New Deal program for economic reform. In the /Me of this trt!nd in the Supreme Court deci!liom. New Dealer3 raised a clamor for either judicial reform by congressioti.al act or by constitutional amendment. President Roosevelt's "court-packing" bill was the administration's .answer to this demand. When the bill j or ''reform" of the Supreme Court finally came u.p for disc1tssion in the S enate, it precipitated a long series of debates so bitter that they ·threatened to disrupt the Democrati~ /'art11. Jn their zenl to maintain the independence of the judiciar11. 37< THE LAWYERS JOURNAL August 31, 1954 TMcla(,Urrs J~ # i/r/ ;:t,,.yTHE SUPREME COURT, THE CONSTITUTION AND THE PEOPLE Ry Josiah W. Bailey, United States Senator, North Carolina The Am<'rican people have within the last few days been suddenly confronted with :\ new and deeply disturbing quc3ti:Jn: The proposition has beC'n put forward under alarming circumstances to increase the number of Justices of the Supreme Court from nine (the preser1t number) to fifteen - provid<:d those Justices 70 yea.rs of age or more shall not retire. There are six Justices of the Supreme Court who fall within the tern1s of this bill. The effect is to notify each of them that if he remains on the Bench another Justice will b:! appvinted to off-set his pres1;:nce, because of the alleged infirmity of agl'. If he retires another will replace him. It looks to a reconstruction of the Supreme Court at one stroke. It is either a judicial recall or a judicia.I neutralization. It implies even more than reconstruction of the Court. It predicates a new version of the Constitution. What are the circumstances in which this far-reaching change in the fundamental structure of our Government is put fo1 wnrd? UNIVERSITY 01' Tfl r l'lllLll ' l'lNI!;~ LlllRAHY / REASONS FOR 1M£ f>1tE!mENT'S PLAN AND THE REMEDY By Homer S. Cummings, Attorney-General of the United States Only nine short days have !>assed since the President sent to the Congl'f$S t'ecommendations for the organization of the Federal judicia.ry. Yet in that brief time~ unfriendly voices have filled the air with lamentations and have vexed our i!ars with an insensate clamor calculated to divert attention from the merits of his proposal. Let us, therefore, disregard !or a moment these irrelevancies and di1·ect our attention to a. dispassionak considoratfon of the reasons lor the action taken by the President and the remedy he suggests. From thP beginning of President Roosevelt's first administration I have been in intimate contact with him with reference to ways and means of improving the administration of justice. Literally thousa.nds of proposals have been considered. In addition, the critical literature of the law has been searched, and the lessons of experience hnve Leen canvassed. Out of it have com·e certain WPll-defined conclusions: First: In our Federal courts the law's delays have become First, we must take note of the tact that the Court has with- intolerable. Multitudes of cases h&ve been pending from five to in t.he last two years frund it necessary to hand down an annual number of opinions holding acts, or portions of acts, of Congress unconstitutional; and that in every instance it has sustained the historic interpretation of the Constitution. If the present Court has been wrong, then the Court has been wrong for seventy-five years or more. Second, that these acts were passed by the Congress at the instance of the President. Third, that when these measures were under consideration . by the Congress, many Representatives and Senators were troubled on the question of . their constitutionality. Fourth, that in one instance the President sent a letter to a Representative advising him to disregard his doubts as to the con. stitutionality of a bill, however reasonable. Fifth, that many members of the Congress felt constni.ined to waive for the time the question of constitutionality and leave the matter to the Court. That is, instead of bearing their part of the brunt of proposed legislation as beyond the power of the Congress, not a few of its members thought bes~ to pass the whole burden to the Court. Let it be said that this was done under the impulses of a sem:e of profound emergency, and with much re.. gret on the part of some. Sixth, that the effect of this procedure was to subject the Supreme Court to widespread criticisn1 and not a few bitter attacks. The Court was described as an oligarchy; it was ~poken llf as exercising the veto power; careless men said even that it haci nullified acts of the Congress; - none of which accusations 4re true; - and even a. scurrilous and ribald book was printed in which the highest court in our land, the highest on earth, respected always and everywhere, made up of learned and venerable men long known in our public life, was held up to scorn and con.tempt. I have read this book Thue is more of falsehood and less of truth in it than in a.ny :oimilar number of pages of which I have had knowledge these fifty yean I have been reading. And seventh, we must bear in mind that in his address to the Congress on January 6th, the President complained of the decisions of the Supreme Court and made some suggestions, the full import of which did not appear at the time. This is the general ba.clcground in which legitlation is proposed, which, if pas..sed, would either enlarge the Court by six new members or cause six present: members to retire and be re. · ten years. Rather than resort to the courts many persons submit tCl dctS of injustice. Inability to secure a prompt judicial adjudication leads to improvident and unjust settlements. Moreover, thf' time factor is an open invitation to those who are disposed to institute unwarranted litigation in the hope of forci>'lg an ac!justment which would not be secured upon the merits. Furthermore, the small business man or the litiga.nt of lim~.tcd rne&ns labors under a grave and constantly increasing disadvantage because of his inability to pay the price of justice. I do not stress these matters further, because the congestion in our courts is a matter of common knowledge. Second: Closely allied with t.his problem is the situation created by the continuance in office of aged or infirm judges. For eighty years Congress refused to grant pensions to such judges. Unless a judge was a man of independent means there was no alternative open to him except to retain his position to the very last. When, in 1869, a pension system was provided, the new legislation was not effective in inducing retirement. The tradition of aged judges had become fixed, and the infirm judge was often unable to -perceive his own mental or physical <lecreptitude. In· deed, this result had been foreseen in the debates in Congress at that time. To mQet the situation the House of Representative<; had passed a measure requiring the appointment of an additional judge to any court where a judge of retirement uge declined to leave the bench. However, the pi-oposal failed in the Senate. With the opening of the hventieth century similar pzoposals were brought forward. The justices of the Supreme Court, however, protested and the project was abandoned. When William Howard Taft, n former Federal jlldge, left the Presidency, he pub.. lished his views. "Therj! is no doubt," he said, "that there are judges at 70 \vho have ripe judgments, active minds a.nd m\lch physical vigor o.nd that they are nble to perfarm their judicial duties in a very satisfactory way. Yet In a majority of cases when men come to be 70 thf'y have 16st vigor, their minds are not as active, their ~11ses not M acute and their willingnes:e to -undertake great labor ls not so great as in younger men and as we ought to have i~ judges who are to perform the enormous task which falls to the lot of Supreme Court justices." In 191 3 Attorney General M:cR+>y11olds (now a justice of the August 31, 1954 THE LAWYERS JOURNAL 873 THE SUPREME COURT ... And :it all times it has been recognized that lhc Court's opin4 ions have been cbnsistent with the Court's historic interpretation of the Constiiution - with the reading of the language of t'hat dc.cument which Marshall and Story, Miller, Fuller, White and Taft. ha.ve made familiar, and which the whole country has apJJrOvecl in eve1·y generation. So, while we have only the fact of age here to support t'he President's suggestion, the truth of the matter is against It. If there were a presumption on account of age, it is ~ebut'teci by th1o facts I have cited. The Supreme Court today is up with its work, is capable, is vigorous; and it iii guarding the Constitution with a vigor e.nd a courage worthy of all the grea~ traditions of its i1oble history, and worthy no l~ss of the great Republic which rests upon that history. If the Court has offended, the offense is that it has in a trying time m~ini.'ained the interpretath>n of the Constitution which the pC'Ople have received from their Court and approved in every period of their histc>ry. I have now disposed of the three reasons the President gave in his mes~age of Febru:i.ry 5th for the proposed changes. It is safe t'o say that no 3dvocate of the President's propo£ition will offer to maintain it upon the considerations upon which lhe President relies in his message. In view of their manifEst inadequacy, one may be justified in looking a little beyond the express reasons set out in the President's message supporting this bill - to ascerta.in whether the President has other ground for his extraordinary action. But I would not look beyond t'he manifest facts, I would not risk opinion. I would draw no inferences. Let us see and consider only what the. President himself said on the subject. He closed his message of February 5th with a significant rcm:lrk that if the measures recommended "achieve their aim, we may be relieved of the necessity of considering any fund:lmental changes in the powers of the courts or the Constitution." This indicated .:i. purpose other than merely improving the Judicial system. I now recur to the President's message of Janua.ry 6th. In this message he disc~ssed certain of his measures which t'he Supreme Court had held to be unconstitutional. He advised l\gainst amending the Constitution. He argued the necessity for general laws of the same type as those which the Court' had declared to be unconstitutioni'.l.i. He put his faith in a different judicial iuterpretation. I quote his words: "With a better understanding of our purposas, and a more intelligent recognition of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Meo-ns must be found to adapt cur leyal forms and our jttdicial ittterpretation to the actual p?"e· sent nati0'114l needs of the largest pr&greBsive dem-0cra<:y in the 11todcrn world." Thus the President ' made known his desire for general laws asserting the Federal power over activities heretofore throughout our history confined to Sta.te regulation, laws like the N.R.A., which the ent'ire Court held to be unconstitutional. And quite plainly he seeks a Supreme Court which will hold such laws to be constitutional, notwithstanding all the prcct;dents to thti contrary. He says that if we reconstruct. ltle Courts as he suggests, "we may be relieved of considering any fundamental changes in the powers of the courts or the Constitution." He would change the Court rather than amend the Constitutfon ! That is, he holds a differently constituted Court would sustain his views; and that, if given the opportunity, Ire may appoint six Jusi'ices and so reconstruct the Supreme Court as to reverse recent decisions, change the· esta):ilished meaning of the Constitution, and asserl the power of the Congress to pass general laws like the Nationa.l R~overy Act - regu!:'.ltinz activities which from thf' beginning unm now have consistently been held to be within the province of the several states. And so, reading his message of January 6th last, together with his message of February 5, 1937, we have no difficulty in perREASONS FOR THE PRESIDENT'S .. 2.lHI judicial action into closer harmony. M;ans must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world." In his message of Feb. 5 the President clearly and forcefully announced his considered and deliberate recommcnda.tion. "Modern complexities," he ~aid to the Congress, "call also for a constant infusion of a new blood in the courts, just as it is needed in executive functions of the government and in prh·at:e business. "Life teriure of judges, assured by the Constitution, was designed to place the courts beyond temptations or influences which might impair their judgments; it wns not intended to crea.te a static judiciary. A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the nee'1s and the facts of an everchanging world." These four outstanding defects of our judicia.l system -- de. lays and congestion in the courts, aged and infirm judges, the chaos created by conflicting decisions and the reckless use of the injunctive power. and the need for m:w blood in the judiciary - are dealt with by the President in his message of the 5th of February, in which he submits a simple, well-rounded, comprehensive and workable system which covers all these points a.nd meets all these neerls. The proposed bill which the President ·submitted with his recommendations provides in substance that whenever a Federal judge fails to resign or retire at the age of 70, another judge shall be appointed to share in the work of the court. In no event, however, are more than fifty a.dditiona.l judges to be appointed, the Supreme Court is not to exceed fifteen in number, and there are limitations on the size of any one of the lower Federal courts. It i lso provides for a flexible system for the temporary transfer gf judges to pressure areas, unde1 the direction of the Chief Judi~. - The President further recommenaed the adoption of a proposal now pending in Congress to extend ~o the Justices of the Supreme Court the retirement privileges long a.go made available to other Federal judges. He also recommended that the Congress provide that no decision, injunction, judgment, or d~ree on any constitutional question be promulgated by any Federal c~urt without previous and ample notice to the Attorney General and an opportunit)• for~the United States to prc:::ent evidence and be heard in behalf of the C'Onstitution11olity of the law under attack. He further recommended that in cases in which any District C'ourt determines a question of ccnstitutionality there shall be a direct and immediate app~al to the Supreme Court, and that such cases shall take precedence over all other ma.twrs pending in that court. This is the sum and substance of what the President pro11ose's. This is the so-called attack upon om judicial institutions. Despite the manifest need of these reforms, despite the comprehensive and reasonable nature of these proposals, de11pite the long history which brought them forth, despite the eminent judges and statesmen who have either expressed views .:ir actually pro. posed mea~ures of substantially ~he same character, the President is now the stonn center o( a virulent attack. The technique ot the last political campaign has been revived. We are solemnly assured that the courts a.re to be made mere appendage;; to the executive office, that the judges to be appointed cannot be trusted to support the Constitution, and the tragedies of despotism await only the adoption of the President's r~ommendations. Yet, no serious objection has been made. to any one of the 11urposes or to any part of the plan, except its applica.tion to certain members of the Supreme Court. Why the Supreme Court 376 THE LAWYERS JOURNAL August 31, 1954 THE SUI'~EME COURT ... cciving the ob~ous fact that our President seeks to reconstitute t'hr S'Jpreme Court of the United States in the clear intE:ntion of bringing about a new int'erpreta.tion of the Constitutien, by decisions sustnining his view of the powers of the CongreAfi and the rights c( the people and the States, Thi~ is thto "means" which he said on January 6th must be fo•md "to adapt our judicial interpretation," and so aYoid amendment' to the Constitution. In this, I submit with great respect, the zea.1 ·)f the Prcsidc!'lt ha;; carried him far beyond wisdom i.nd right. The remedy is worse - infinitely worse - than the diCficultr to which it is addressed. Grant t'hat his motive is good, that Ms o1'jective is wo11.hy, he cannot afford to set such a standnrd or such a precedent. It was never intended that a.ny President or any Congress should control the Supreme Court of t11e United States, ot: any dher Court. W1• sdtled that with the Stuart Kings of Englanci 300 years ago. It is, if I m:iy quote the President on another r.rcasion, "mo1·e power tfom a 'good man should ·.•ant or a bad should have." Courts, in order to adminiRt.er justice, must be indi;per..dent. Grant that his motive is the purest - I d~ny a President's right to seek to mould the Supreme Court \b his heart':j desire. 1 deny th~ right of Congress to seek to form a Court that wi!l int<>rpret the Constitution to suir its interpretation, its judgment or i!e will. None m.9.y seek to influence the Court save by th~ acccpt.£:d l'rOceRses of Justice. President, Congress, and Court are each und£:r the Constitution. It is t11e people's instrument; the charter of thf,ir rights; the sheet anchor of their liberties. And it must be interpreted, if it is k be of value, only by a Court of Justice, independent of a.li mfluence, free of all politics or personal will. free of all force, inducement of temptation, and upon the alt.ars of Reason aud Conscience under th~ oath duly taken before the God from whom .:iur liberties and \,,e great instrument of their preservation were alike derived. As wa!' said of old, so must it ~ said now and ever more to all wb minister in the People's Temj>le of Justice: "Wha.t doth the Lord God reqt!ire of TJ1ee but to do Justice, love mercy and walk humbly before the Lord Thy God?" Grant thnt t'he President's objective is desirable; his method is indefensible. It must. b~ resisb•d because it is wrong; 11.nd also because there is a 1·i~ht way. If the President or ihe Co1~gress or both ought to have more power, and the people r.nd the Stat'l>s lets, let an amendment to the Constitution be submitted to the people. Ler us neYel' seek to reconstruct a court t.o suit our wills. Upon proper grounds we may impeach and i·emove, but we cannot reconstru<'t a Coul't. Truth and Just.ice find their sources in a higher will than any man's or all m€n's. We interfere with the processes by which they are revealed at no less peril than that of t'he rash young men of old who laid hands upon the Ark of the Covenant of the Chosen People. I know that this question is :10t a party question: It strikes lhroughout America. far deeper than party lines or partisan predilection, But l am glad i,,9t I can invoke the Platforn: or my Party at this moment. Precist::ly on the point of lhe Prer.ident's poEition, the Democratic Convention of 1936 has syoken. Tn full vi~w of t.he opinions of the Supreme Court on the legislD,tion of the Administration, and in the prospect of the campaign, thl' candidute, and the election, the Democratic Party gave its most: solemn assurance. I quote: "If these problems cannot be effectively solve<i by legislation within the Constitution, we sha~l seek such cl<:.rifyinz amendment i:.s will ussure fo the legislatures of th'1 several States .and to the Congress of the United States, each within its proper jurisdicticn, the power to enact those laws which the Stnte and Federal l~gi-:!ila­ tures, within their respective spheres shall find nccess:iry in order adequaiely t.o regulate commerce, protect public health and sefety, and safeJ;"Ual'd economic sPCur!ty. Thus we J.·roposc to main .. ta~n the letter and spirit of the Constitution." REASONS FOR THE PRESIDENT'S ... should be g-ranted a special exemption from the plan no one has been nble to explain. If th('re were no judges on that court of retirement age thne- would be no substantial objf'ctivn fre>m nny responsible qu!trt£:r, Whr>.t then is the real objection? It fa sillJply tfos: Those who wish to preserve the status quo ·.vant to retain on the bench judges who may be relied upon to veto prcgressiv" Opponents Qf this measure assert that it is imrr.~ral. The reason they charge that it is immoral · i.;; because they are unable to <'harge th&t it is unconstitutional. Whether the iJlan is immoral or not must be tested by the results it produces. If it produces a wholesome result in a perfectly legal way it can scarcely bf' c&lled immoral. It is truP. that the t>resident's proposal may possibly hut not nE>cessarily have the dfoct of incrP.asing the size of the S1•prem" Court. Rut there is nothing new in that. J efferson, Jacksol'!, Lincoln and Grant, togethP.r with the Congresses {;.f their respect.. ive periods! saw no objection to enla1·ging the court. Again, it is loosely charged that the present proposal b a bold attempt to "pack" the court. Nothing could be farther from truth. Every increase in thc men'lbershi9 of a court is open to that charge, imj indeed every replacement is subject to the same obj-'!t'.:tion. Under the> President'e: proposal, if there is any increase in the totnl number of judges, it will be due entirely to the fart that 0 judges HOW of retirement age e!c<'t to remain on the bench. It those judges think it would be harmful to the court to increase it.~ membership, they can avoid thi.!t result by retiring upon full p!ly. The Constitution imposes upon all Presidents the duty of ap1iointing Federal judges, by and with the advice and consent of 1he Senate. Upon what ground, m<>.y I ask, do foe opponents of the President justify the claim that he shall not ~erfo1m the duty that all other Presidents have performed. George Washinr;k.n appoir:ted twelve memhE:rs of the Supreme Court. Jackson appointed five. Lincoln appointed five. Grant appointed four. Harrison a1lpointed fonr. Taft appointed five a.nd devated still anoth(.!r to he Chief Justice. Harding appointed four and Hoover appointed three. President Roosevelt has nnpointed n')ne at all. Out of every attack of hysteria on this question there comes a further charge that the President's proposals will lea.d to dictalorship, through the establishment of an evil precedent. Rut there ha\'e been far more significant precedents than this. J efferson ignored a subpoena issued by Chief Justice Marshall. Jackson, in a stubborn moment, told the Supreme Court to try and enforce its own decrees. Lincoln totally disrega1·ded Chief Justice Taney't dPmand that the 1.lrivilege of the writ of habeas corpus he restored. No one vi these PreRidents waf! a dictator, but each illustrated how powerlei::s the courts are unless the purity of their motives and the justice of their decisions win them the popular support. Indeed, the Supreme Court in its opinions has specifically l't'COgniz~<l this fact. Let us have done with irresponsible talk abcut dictatorship. Let us turn our minds to realities. We hear much a.bout the perils that beset democracy. If we are to defend successfully our institutions against :\li comers from the right and from the JP.ft we must make democracy work. Those who were violently opposing the President's re-comn1en<!ations insist that the reform!! he seeks to brhg about should be acc..,mplished by amending the Constitution and by that met.hod alone. This is the strategy of delay ar.d the last t~sort f'f those who desire to prevent any action whatever. Thirteen State Legislatures can p1·event the adoption of any constitutional amendment. The Child Labor amendment, submitted thirteen years ago, has not yP.t been ratified. Furthermore, if 'any amendment were sc-cured, it would still ha,.·e to run the gauntlet of judicial interpr~tation. <Continued on page 378) August 81, 1954 THE LAWYERS JOURNAL 377 THE SUPREME COURT . These are the words of the President's Party's Platform. This was his platform as recently as November 8, 1936. I ~ta1:d on this Platform, and I have the right to ask that my Pz.rty shall stand on this Platform. It is the Plat:form on which foe President was a candidate, and on which he was standing in thl: campaign. It was accepted i:iy the American people. It was good November 3, 1936. It is go11d at this moment:. Not one word was said for the pres~11t proposition bcfor.J the election. Had we offered a l'latfonn in wl1ich we promised to recC1n:::ttuct the Sup.. reme Court and M: reconstruct it a.:> to chaHge the historic interpretatic>n of the Constitution, the ca...>npaign would have been fought out on that question. And yet, if . this measure is tu be considered, th~t is what we should have done. This at least would have given the people a chance to expre3S' their will in the matter. And it is a matter in which they have right to express their will. If change in the meaning of the Constitution is desired, the way to bring that cha.nge about is to amend the Constitutioii, not the Court. That is what the Platform rays. If a ''modern" Constitution is desired, we can have it only one way - that is in the way we got the old Constitution, by the> will of the ~eople. It is their instrument. They made )!::, and only they may chang•· it. We cannot alter the Ten Comma.-ndments by intei-prctation. 'I'ht: meaning they had the day they were given upon Sinai, that meaning they have had these five thousand years and will have until the end of time. We cannot change the meamng of the Magn<!. Charta by interpretation; we cannot change the meaning ,,f our Bill of Rights by interpretation. May they abide forever! We can chang~ the language of the Constitution in the way provided, but we cannot ordain an interpretation of the language as it stands to suit ourselves, nor may we contrive a tribunal for such n purpose. One may attach to tlmt language a different meaning from that: which the Court has given it, but ·he cannot reconstruct a Cuurt of Justice to bring about tha.t mt:aning. To do so would put an end to the signific~nce of the Constitution as the instrument of t'he Government's existence and stability, as the supreme law of the land and the charter of the people's rights. For if one Congress may add six members to fhe Court in orrter to validate its acts, another Congress ma.y E.dd ten more mt!mben: to validate its act's, This would be to destrcy the Court and the Constitution. And it would be better not to pretend to hav~ t:ither, but frankly confess that our Gon:rnment has become a Government of men, no!! of laws. Let me give you an illustration, Many of you have hll.(f law suits or served on juries. What sort of justice would we h!ive if a litigant could increase the jury to suit his purposl's, putting jurors thereon to do his will? What sort of jury would that be, if upon finding that it was divijed, one might adtl to it six men to suit his purpose? Juries find the facts; Courts, i.<:., Judges, find the law. It is just as import'ant that the law be int-:rprete:l by an impartial Court .as that the facts be found by an impal'tial jury. There is a process of Justice, and it is nc..'i- political. ll lcoks to the will of the Jaw, net t.11e will of men or any :nal'. A stacked jury, a stacked Cq_urt, and a stacked <leek ot cards are in the same moral category - one has no mv1c confidence ir. one than in another of them. - Set the prered~nt for a good purpose, and it will be nwokc<I for a thousand bad purposes. We cannot: put Congress 01· President above the Constitution. Like th.a Flag, it is over all. George Washington was our greatest man. He kept himself under the Cor.stitution. But if he had not been willing to do so, the people would have 1ffoken down th'2' Republic rather than put him above it'. They loved him, they trusted him, he had served thein as no mortal has ever served his fello" men; but his generation knew, as this generation knows, that no man, no Congress, is great enough or wise enough or good enough to be entrustl!d with unbridled power. No man should ask in our land, even with the highesC m'Jt,ives and the best objectives, to be given leave so to reconstruct the Supreme Cou1·t a.;; to give him power. to determine the meaning of the Constitution. That would put him over it, not under it. There would be at once an end of Constitutional· government, and the question with reforer:ce to legislation or any executive act would not be, is it within the powers granted by t'he peonle in the Constitution? - but only, is it within the purpose of a President or Congress which have taken over the power to mould the Constitution to their will? Under such conditions where would be that which we now know as tbe Judicial Power - in the Temple cf Justice, wi1ere the people hiwe placed it, or in the will of the ·President and the Congress? Under 1mch conditions what sort of Rc!Jublic would this Republic be? Very plainly mo1·e is now involved then has been involved in our entil·e history. Court' and Constitution are at stake. We c'1n11ut properly measure their ve.Juc;. Rut I must offer, a~ I con· ch1de, a further word to that cn,1. The Supreme Court of the United States is not the crcatuu of Congress. It is not the creature of a mo'.;!lcnt. It is their institution. It is not the creature of a moment. It. has been in continuous existence nearly 150 years. We see it today embojil'd in nine learned and venerable men, but the Court consists of nll who have miniskred in it's Temple, the dead as w.:11 as the living. Its voice is the voi~e of Past imcl Prl<sent. Ih: fur.ction is Th1tr. and Righteousness, the ancient word for Justice. I'. does r.ot rule. It merely affirms the will of th<! people in the inst.rument wN::h they uttered to preserve their rights over against all power:> ~of th~ government. It does not veto acts of the Congress: It deckrf\s only when those acts transgress the limits set upon the ·powers of the Congress by the people in their Constituticm. 'J'his !Ind no more. It does not pass on the wisdom of legislation. It does not determine economic questions. It has· n~ ea.rthly power. Congress has the purse, the President is Commander-in-Chief of t'he Army and Navy, and the Executive of the> Republic. The Supreme Court has neither puree ncor $word. It cannot even defend itself against criticism. Its dE:crees prevail only by reason of the spiritual appeal of Jushce in the human heart. Beautiful to behold is the fact that now for 150 years without other aid, such has been the capacity of the American people for Justice, such their native feeling for its proccsf!:cs, that in all seasons and evl'nts, in war and peace, in poverty und proi:perity, in the day of small things a.nd t.1ie day of great things, whether agreeing or disugreeing, they have exalted this Court; they havP kept it above politics; they have protected it against all who would tl'ar it down; they have upheld i\: age.inst all wito would bring it low; they have accepted its deciswns as the ultimate ciE:i:2:-mination C'f contrnversie8, civil or criminal, in high or low e6tate, in life and in death. On the other hand, it has never failed t'1em. It ha8 stood betwE:en them and all who would imp~ir their rights. It has succored rich and poor with equal hand. It has vindicated freedom of speech and of the press. The:: humbl1:1 ex~slave has fou'!ld refuge in its precincts against the power of mighty States ; and St'.ltes have found by means of it their rightful place in the l;nion the fathers brought foith. It }\as guarc~ed the rights of the people, it has preserved the rights of the St&tes, it has maintained the i·ights anci the powers of the Union - and an without purse, REASONS FOR THE PRESIDENT'S .. <Continued frr>m page 377> The more thoroughly the President's plan is debated the more clearly will its merits appea1·. It meets legitimatl: need. Tt is reasonable, it is moderate, it is direct, it is ccnstituthmal. It works cut our problems within the framework of our iustoric institu. tions and it guides us to a clear path away from our i;resent difficulties. The envious and the malicious m~y challenge the integrity of the President and the purity of his motives, )>Ut the only apt)etasy of which he could be guilty would be to break faith with thl' people who trust him to carry on. 378 THE LA WYERS JOURNAL August SI, 1954 DEBATE ON SENATE BILL NO. 170 AMENDING OR REPEALING CERTAIN SECTIONS OF THE JUDICIARY ACT OF 1948 May 5, 1954 - 11:00 A.M. SENATOn PRIJl.'IICIAS. Mr. President, I now ask for immt>diate consideratfon of Senate Dill No. 170, the amendment-s to t.hc Judiciary Act. PRESIDENT. Consideration of Senate Bill No. 170 is in 01·der. SENATOR PRIMICIAS. The sponsor of the measure, Mr. President, is the distinguished Chairman of the Cvmmittee of Justite, the gi<ntleman from Batangas, Si:;nator Laurel. I Mk that he bf' recognized. PRESIDF.NT. The gentleman from Batangas has the floor. SENATOR LAUREL. Mr. President and gen!kmen of the Senate: Senate Bill No. 170 which is now the bill submitted for the ccnsiderat:ion of this Honorable Body, Is the 1·esult of what might be considered a compilation of the different measures submitted to the Committee on Justice, and to a Yery great extent, incurporatcs ~ea­ tures taken from the reorganizaifon bill submitted by Senat.:ir M:abanag as well as the recommendations made by th~ Department or Justice and likewise the recommendations at one time made by As.. sociate Justice Ramon Diokno, now deceased. Sen&te Bill No, 170 is not a complete reorganization t1f the judiciary, but in the opin'.on d the Committee on Justice incor110rates what might be called-the principal features which need to be incorporated in a legislative measure in order to improve the present organization of the judiciary as well as certain reaturei; of fundamental character which must be inserted in the 1:1ew reorganization measure. I atr. goinir to refer to the principal features which we have incorporated in this bill. The first' has reference, Mr. President, to the increase of the salaries or thP, Chief Justice and Associate Justices of the Surreme Court and the Chief or the Presiding Justlct. and Associate. Justices of the Comt cf Appeals and ~lso the judges of the cou~ts of first instance. '.J'his feature of the bill is not a new one because, as the m..:mbcrs of this body will reeall, last yea1· we approved the Senate bill concurred in by the HousP of Representatives providing for the increase of the salaries of the Justices of the Supreme Court and the Justices of t,,e Court of A ppee.ls and the judg(!s of the courts of first inste.!'.ce, That bill, however, was THE SUPREME COURT .. . without patronage, without propaganda, without force; but not with.out Power - not without: th~ power in it .'lnd in ourselves which makes for Righteousness, Our forefathers hrought it forth, our fathers have preserved it for us; snd we now will m:i.intain it for ourselves, our ehildren and our children's children. And what is this ·Constitution of t:he United States? It is the cht?.rter of the national existence and stability; and ii. is more. It is the charter of the powers given to the Republic, of the powers reserved to the States, of the inali~nable rights in th<' people. h' is their instrument. They made it.. They maJf' i~ not just to c~nstitute a government, but also to preserYe their rights - the bl{:ssings of liberty to ourselves and our po~terity. They know i'hat any sufficient government would become Etronger than any one of themselves. They crc>etcd 3 government, nnd gave it power - so much and no more - and they 81\Serted rights in States wJ•ich they could control, rights in themselves singly aud a.s a whole which none could violate. They set up a Court to deelare the m<'!tes and bounds 0£ i..'hu powers they were vesting. and made it independent, to define, to d('(:lare, and to sffirm thl.' powers they were holding to themselves, or to their States, The Constitution is no device th block the Jlet~ple's progress. IL is the device of the people to preserve themselves, their St3te11, their local self government, their in:i.lienable rignts, their homes, and \..'he future of their children. The people made it and only they can changti it - and only in the way they providerl. Let \'etoed by the chief exeeutive then on the gi.ound that the bill w:i.s unconsl'itutional because t.he hill treated of various matt~rs and these matters are not mentioned or referred to in the title ~f the bill. So that the veto by the former chief executivf' \Vas based more vn a technical grotmri than on anylhiug else :md it seems tha.t even the former exeeutive was not opposed to the aug. mentation or increases of the salaries of the Justices of the Supreme Court and of the Justices of l'he Court of Appeals :md the judges of the court.!. of first instance. lt is hopc1l that we have eliminated even the technical objection of the former chief executive, and that is the re-:ison why the increase is heing i·eiterated in this measure which is practically a rep1·oduction of the 'oill which was vetoed by the former chief executive. That is one feature, and It is not necessary for me to argue in ravor of the increase because this Honorable Dody having already ap;iroved the increase in last: year's session, I suppose, unless conditions have changed or opinions hnve changed, this Body will likewise approve what it had approved last year. The second feature oi this reorganization bill is the abolition of judges at large and cadastral j udges. The reas,m for th~ abolition is, first/to make the organization of courts vf general juriSdici'ion which are the courts of first instance mi:.re simple. In othl!r worris there will only be one kiT!d of judges of courts of fir~t instance and thP.se judges are the district judges of courts of first in~tance. While probably in the past there might have been a ne<Xl for the appointment.' of cedastral judges and, perhaps, judge!l at large, or even at one time, auxiliary judges it seems that conditions have changed now, and even the cadastral judges do not <levote their time exlusively· to the hearing and tl'ial of cada!li'ra.i cases. With th:? conditions having changed and in view of the fact that nil these different judges, whether C:istrict judges, judges at: large, or cadastral judges, all belong to the sa.me category, namely, they are judges of courts of fir!lt instance, it would be more · simple in the plan of judicial re.organization to make all these judges district judge!l. So that in orcier to implement this provision which is intended to simplify our judicial organizai'i<'H, we provide for the a.bso-rption of the judgea at large and the cadastral judges by considei:ing them as judges or the district to be distrib'.lted and c.thers denounce it; let others criticii-c it; the people will preserYe it as the charter of their libertiei::, their right's, their votes, their democracy, their place in the life of their Republic. It £tands between them and the possibility of a dictator. ThC!y require eYery public officer to take solemn oath to maintain .:lnd support it,, They give fto man power save upon this oath. Sometimes we forget; sometimes impatience ove1·ccme!I our bet.. ter judgment. But at last we remember. Down in our hearts •.ve know that so long as the Constitution stands, the Republic wW stnnd; so long as the Constitution stands, our rights are secure cur homes are our own and none may make us :1fraid. It restri.ins the over-reaching hand of power. It stop;; the army on the Chreshold of the cabin. It aSS-Orts the dignity ol man, his pli.ce in the earth and the freedom of his soul. Congress is mighty, but the Constitution is mightier. Presidents are powerful, but the Constitution is more powerful. Courts nr~ grea\:, but the Constitution i!l greater. Laws are str~ng, but the Constitution is stronger. And it is so because the Constitution is the expressed will of all of the p.?ople, the supreme law of the land, to he nltered only by· themselves, and therefore the living soul of demOCl·acy. The Court and the Constitution: - They st.-ind to fall to~ gether. The Constitution creates the Court', and the Court de. clares and maintains the Constitution, To weaken one is to weakrn the other. Tc. destroy one is to destroy the ot.'her. Tc weakrin either is to wc:>.ken the foundations of our° Republic; to destroy either is to destroy the Republic. August 31, 1954 THE LAWYERS JOURNAL 379

Date

1954

Rights