The
Supreme Court is the highest federal court in the United States. Its
existence is provided for in Article III of the Constitution, although
Congress is given the power to determine the size of the Court. The
size of the court is set by Congress and currently consists of a Chief
Justice and eight Associate Justices.
Members of the Supreme Court are appointed for life by the President.
They may be removed only by death, resignation or impeachment. The
Supreme Court has the power of judicial review. It may declare acts
of Congress or of state governments unconstitutional and therefore
invalid. The Supreme Court decides cases by a majority vote and its
decisions are final.
Franklin D. Roosevelt came into conflict
with the Supreme Court during his period in office. The chief justice,
Charles Hughes, had been the Republican
Party presidential candidate in 1916. Herbert
Hoover appointed Hughes in 1930 and had led the court's opposition
to some of the proposed New Deal legislation.
This included the ruling against the National
Recovery Administration (NRA), the Agricultural
Adjustment Act (AAA) and ten other New Deal laws.
On 2nd February, 1937, Franklin D. Roosevelt
made a speech attacking the Supreme Court
for its actions over New Deal legislation.
He pointed out that seven of the nine judges (Charles
Hughes, Willis Van Devanter, George
Sutherland, Harlan Stone, Owen
Roberts, Benjamin Cardozo and Pierce
Butler) had been appointed by Republican
presidents. Roosevelt had just won re-election by 10,000,000 votes
and resented the fact that the justices could veto legislation that
clearly had the support of the vast majority of the public.
Roosevelt suggested that the age was a major problem as six of the
judges were over 70 (Charles Hughes,
Willis Van Devanter, James
McReynolds, Louis Brandeis, George
Sutherland and Pierce Butler). Roosevelt
announced that he was going to ask Congress to pass a bill enabling
the president to expand the Supreme Court
by adding one new judge, up to a maximum off six, for every current
judge over the age of 70.
Charles Hughes realised that Roosevelt's
Court Reorganization Bill would result in the Supreme
Court coming under the control of the Democratic
Party. His first move was to arrange for a letter written by him
to be published by Burton Wheeler, chairman of the Judiciary Committee.
In the letter Hughes cogently refuted all the claims made by Roosevelt.
However, behind the scenes Hughes was busy doing deals to make sure
that Roosevelt's bill would be defeated in Congress. On 29th March,
Owen Roberts announced that he had changed
his mind about voting against minimum wage legislation. Hughes also
reversed his opinion on the Social Security
Act and the National Labour Relations Act
(NLRA) and by a 5-4 vote they were now declared to be constitutional.
Then Willis Van Devanter, probably the
most conservative of the justices, announced his intention to resign.
He was replaced by Hugo Black, a member
of the Democratic Party and a strong
supporter of the New Deal. In July,
1937, Congress defeated the Court Reorganization Bill by 70-20. However,
Roosevelt had the satisfaction of knowing he had a Supreme
Court that was now less likely to block his legislation.
Justices of the Supreme Court have included John
Harlan (1877-1911), David Brewer
(1890-1910), Henry Billings Brown (1891-1906),
Oliver Wendell Holmes (1902-1932), Charles
Hughes (1910-1941), Willis Van Devanter
(1911-1937), James McReynolds (1914-1941),
Louis Brandeis (1916-1939), Howard
Taft (1921-30), George Sutherland
(1922-1938), Pierce Butler (1923-1939),
Harlan Stone (1925-1941), Owen
Roberts (1930-1945), Benjamin Cardozo
(1932-1938), Hugo Black (1937-71), Felix
Frankfurter (1939-1962), William Douglas
(1939-1975), Frank Murphy (1940-1949)
and Thurgood Marshall (1967-1991).
Robert Minor, Nine Old Men (May, 1937)
(1)
Franklin
D. Roosevelt,
radio broadcast, Fireside Chat (9th March, 1937)
Tonight, sitting at my desk in the White House, I make my first radio
report to the people in my second term of office.
I am reminded of that evening
in March, four years ago, when I made my first radio report to you.
We were then in the midst of the great banking crisis.
Soon after, with the authority
of the Congress, we asked the Nation to turn over all of its privately
held gold, dollar for dollar, to the Government of the United States.
Today's recovery proves
how right that policy was.
But when, almost two years
later, it came before the Supreme Court its constitutionality was
upheld only by a five-to-four vote. The change of one vote would have
thrown all the affairs of this great Nation back into hopeless chaos.
In effect, four Justices ruled that the right under a private contract
to exact a pound of flesh was more sacred than the main objectives
of the Constitution to establish an enduring Nation.
In 1933 you and I knew
that we must never let our economic system get completely out of joint
again - that we could not afford to take the risk of another great
depression.
We also became convinced
that the only way to avoid a repetition of those dark days was to
have a government with power to prevent and to cure the abuses and
the inequalities which had thrown that system out of joint.
We then began a program
of remedying those abuses and inequalities - to give balance and stability
to our economic system - to make it bomb-proof against the causes
of 1929.
Today we are only part-way
through that program - and recovery is speeding up to a point where
the dangers of 1929 are again becoming possible, not this week or
month perhaps, but within a year or two.
National laws are needed
to complete that program. Individual or local or state effort alone
cannot protect us in 1937 any better than ten years ago.
It will take time - and
plenty of time - to work out our remedies administratively even after
legislation is passed. To complete our program of protection in time,
therefore, we cannot delay one moment in making certain that our National
Government has power to carry through.
Four years ago action did
not come until the eleventh hour. It was almost too late.
If we learned anything
from the depression we will not allow ourselves to run around in new
circles of futile discussion and debate, always postponing the day
of decision.
The American people have
learned from the depression. For in the last three national elections
an overwhelming majority of them voted a mandate that the Congress
and the President begin the task of providing that protection - not
after long years of debate, but now.
The Courts, however, have
cast doubts on the ability of the elected Congress to protect us against
catastrophe by meeting squarely our modern social and economic conditions.
We are at a crisis in our
ability to proceed with that protection. It is a quiet crisis. There
are no lines of depositors outside closed banks. But to the far-sighted
it is far-reaching in its possibilities of injury to America.
I want to talk with you
very simply about the need for present action in this crisis - the
need to meet the unanswered challenge of one-third of a Nation ill-nourished,
ill-clad, ill-housed.
Last Thursday I described
the American form of Government as a three horse team provided by
the Constitution to the American people so that their field might
be plowed. The three horses are, of course, the three branches of
government - the Congress, the Executive and the Courts. Two of the
horses are pulling in unison today; the third is not. Those who have
intimated that the President of the United States is trying to drive
that team, overlook the simple fact that the President, as Chief Executive,
is himself one of the three horses.
It is the American people
themselves who are in the driver's seat.
It is the American people
themselves who want the furrow plowed.
It is the American people
themselves who expect the third horse to pull in unison with the other
two.
I hope that you have re-read
the Constitution of the United States in these past few weeks. Like
the Bible, it ought to be read again and again.
It is an easy document
to understand when you remember that it was called into being because
the Articles of Confederation under which the original thirteen States
tried to operate after the Revolution showed the need of a National
Government with power enough to handle national problems. In its Preamble,
the Constitution states that it was intended to form a more perfect
Union and promote the general welfare; and the powers given to the
Congress to carry out those purposes can be best described by saying
that they were all the powers needed to meet each and every problem
which then had a national character and which could not be met by
merely local action.
But the framers went further.
Having in mind that in succeeding generations many other problems
then undreamed of would become national problems, they gave to the
Congress the ample broad powers "to levy taxes ... and provide
for the common defense and general welfare of the United States."
That, my friends, is what
I honestly believe to have been the clear and underlying purpose of
the patriots who wrote a Federal Constitution to create a National
Government with national power, intended as they said, "to form
a more perfect union ... for ourselves and our posterity."
For nearly twenty years
there was no conflict between the Congress and the Court. Then Congress
passed a statute which, in 1803, the Court said violated an express
provision of the Constitution. The Court claimed the power to declare
it unconstitutional and did so declare it. But a little later the
Court itself admitted that it was an extraordinary power to exercise
and through Mr. Justice Washington laid down this limitation upon
it: "It is but a decent respect due to the wisdom, the integrity
and the patriotism of the legislative body, by which any law is passed,
to presume in favor of its validity until its violation of the Constitution
is proved beyond all reasonable doubt."
But since the rise of the
modern movement for social and economic progress through legislation,
the Court has more and more often and more and more boldly asserted
a power to veto laws passed by the Congress and State Legislatures
in complete disregard of this original limitation.
In the last four years
the sound rule of giving statutes the benefit of all reasonable doubt
has been cast aside. The Court has been acting not as a judicial body,
but as a policy-making body.
When the Congress has sought
to stabilize national agriculture, to improve the conditions of labor,
to safeguard business against unfair competition, to protect our national
resources, and in many other ways, to serve our clearly national needs,
the majority of the Court has been assuming the power to pass on the
wisdom of these acts of the Congress - and to approve or disapprove
the public policy written into these laws.
That is not only my accusation.
It is the accusation of most distinguished justices of the present
Supreme Court. I have not the time to quote to you all the language
used by dissenting justices in many of these cases. But in the case
holding the Railroad Retirement Act unconstitutional, for instance,
Chief Justice Hughes said in a dissenting opinion that the majority
opinion was "a departure from sound principles," and placed
"an unwarranted limitation upon the commerce clause." And
three other justices agreed with him.
In the case of holding
the AAA unconstitutional, Justice Stone said of the majority opinion
that it was a "tortured construction of the Constitution."
And two other justices agreed with him.
In the case holding the
New York minimum wage law unconstitutional, Justice Stone said that
the majority were actually reading into the Constitution their own
"personal economic predilections," and that if the legislative
power is not left free to choose the methods of solving the problems
of poverty, subsistence, and health of large numbers in the community,
then "government is to be rendered impotent." And two other
justices agreed with him.
In the face of these dissenting
opinions, there is no basis for the claim made by some members of
the Court that something in the Constitution has compelled them regretfully
to thwart the will of the people.
In the face of such dissenting
opinions, it is perfectly clear that, as Chief Justice Hughes has
said, "We are under a Constitution, but the Constitution is what
the judges say it is."
The Court in addition to
the proper use of its judicial functions has improperly set itself
up as a third house of the Congress - a super-legislature, as one
of the justices has called it - reading into the Constitution words
and implications which are not there, and which were never intended
to be there.
We have, therefore, reached
the point as a nation where we must take action to save the Constitution
from the Court and the Court from itself. We must find a way to take
an appeal from the Supreme Court to the Constitution itself. We want
a Supreme Court which will do justice under the Constitution and not
over it. In our courts we want a government of laws and not of men.
I want - as all Americans
want - an independent judiciary as proposed by the framers of the
Constitution. That means a Supreme Court that will enforce the Constitution
as written, that will refuse to amend the Constitution by the arbitrary
exercise of judicial power - in other words by judicial say-so. It
does not mean a judiciary so independent that it can deny the existence
of facts which are universally recognized.
How then could we proceed
to perform the mandate given us? It was said in last year's Democratic
platform, "If these problems cannot be effectively solved within
the Constitution, we shall seek such clarifying amendment as will
assure the power to enact those laws, adequately to regulate commerce,
protect public health and safety, and safeguard economic security."
In other words, we said we would seek an amendment only if every other
possible means by legislation were to fail.
When I commenced to review
the situation with the problem squarely before me, I came by a process
of elimination to the conclusion that, short of amendments, the only
method which was clearly constitutional, and would at the same time
carry out other much needed reforms, was to infuse new blood into
all our Courts. We must have men worthy and equipped to carry out
impartial justice. But, at the same time, we must have Judges who
will bring to the Courts a present-day sense of the Constitution -
Judges who will retain in the Courts the judicial functions of a court,
and reject the legislative powers which the courts have today assumed.
(2)
Emanuel
Celler, wrote about President Franklin
D. Roosevelt
and the Supreme Court in his autobiography,
You Never Leave Brooklyn (1953)
Congress, with their individual traits,
attitudes, and even passions, broke loose in 1937.
The first, the longest,
and the loudest clamor against Roosevelt came with his plan for the
reorganization of the Supreme Court. It shocked the Congress. I wonder
now why the shock was so great. There was a consistency in Roosevelt's
logic which we chose utterly to ignore. The "nine old men"
on the bench were products of another age, tempered by social attitudes
which the people had rejected in the bitterness of the depression.
They had not swum in the swift rivers of the
times and could not comprehend the currents. The Supreme Court could,
by judicial interpretation, undo the work of the Congress and the
President. Constitutional interpretation is just as much a matter
of temperament as it is the knowledge of precedents. Yesterday's minority
opinion becomes the majority opinion of today.
But we were shocked. I
believe that we were looking for absolutes. The delicate constitutional
balances must not be disturbed. In the rapid succession of legislative
enactments, many of which were based on untried political theory,
the Supreme Court, not subject to the short-ranging pressures of each
day, was the brake against the impetuous, the experimental. In the
Supreme Court lay certainty,
assurance, and authority. These must not be disturbed.
(3)
Emanuel
Celler, speech in Congress (13th
April, 1937)
It is not the Constitution, but a debatable
construction of the Constitution adopted by a bare majority of the
Court, which has been blocking the New Deal program. I deplore the
cunning manner in which some opponents of the President have been
carrying on a Nationwide campaign to obscure this fact; and to make
the people believe that Congress and the President have been trying
to exercise powers which were clearly unconstitutional. I say this
despite the fact that I disagree with the President's plan for six
young additional Judges to replace those eligible for retirement.
I sympathize with the President's objective but disagree with his
method of obtaining it.
For four years all the
reactionary forces in the United States have been trying to convince
the people that adequate laws could not be enacted by the Congress
to aid the farmers, the wage earners, and small-business men, because
the Constitution prohibited all such laws. But the fact is that the
Constitution grants ample power to the Congress to pass such needed
legislation, according to the opinions of several Justices of the
Supreme Court, and of many other judges and lawyers of high authority
and reputation. In other words, I believe the majority of the Supreme
Court was wrong and the minority right.
When one group of lawyers
and judges upholds the constitutionality of desirable laws and another
group declares such laws to be unconstitutional it is perfectly plain
that, in the language of Chief Justice Hughes, 'the Constitution is
what the judges say it is.'
The Constitution has not
prevented New Deal legislation. It is the judges who interpret the
Constitution to conform to their ideas of public policy, and who do
not believe in the wisdom of the New Deal program, who have blocked
that
program. They have nullified legislation which other judges equally
able and learned hold to be within the powers of Congress. But, I
repeat, the President has, I believe, taken the wrong means to prevent
future nullification of New Deal legislation. Asking for six new appointments,
if six over seventy fail to resign, is a rather bitter pill for the
nation to swallow.
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