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ATLANTIC HIGHLANDS HERALD |
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SCARING THE SUPREME COURT “A republic, madam, if you can keep it…” …was Benjamin Franklin’s snappy answer to a passer-by outside Independence Hall, Philadelphia, during the Constitutional convention of 1787. She had asked Dr. Franklin what form of government the conventioneers had devised. Historians have mused, ever since, on the prescience of that off-hand comment. Benjamin Franklin’s never-disclosed expectations behind that answer almost certainly did not include courts legislating from the bench and deconstructing American culture and morays via emanations, penumbras, and references to foreign laws and customs. In Franklin’s time, the judiciary was expected to be the weakest branch. Lacking enforcement powers, it would have to rely upon the other branches to uphold its rulings. Implicit in the Separation of Powers Doctrine – although not stated in the Constitution – was an assumption that the executive and legislature would refuse to comply with any judicial incursions onto their turf. Being mere mortals, the Founders did not imagine courts advancing agendas which lack legislative support. But this is clearly happening now, as a recent case in Kansas demonstrates. The Kansas State Supreme Court recently ruled that the Kansas Legislature must appropriate $858 million from the state treasury for public schools. Although the court lacks authority to order this, legislators are scurrying to comply – as if the court has every right to make such demands and the legislature has no option except to obey. Why those legislators are not giving the legal equivalent of the Bronx Cheer to the court is not clear. (Maybe because it’s Kansas.) But things have not always been so. In other eras, the two other branches reacted more strongly when courts contravened the “will of the people”. The most dramatic of such reactions occurred in 1937. During FDR’s first term, numerous New Deal programs were enacted. One was the National Recovery Administration which organized thousands of businesses (and some 23 million workers) under fair trade codes. As compliance was always problematic, attempts were made to use the courts for enforcement. In 1935, however, the Supreme Court ruled the entire program unconstitutional. The Agriculture Adjustment Administration – designed to control crop and livestock prices by destroying animals and paying farmers not to produce – was also struck down. (Most Americans thought the program insane, anyway, since people were literally going hungry at the time.) After his landslide election to a second term, Mr. Roosevelt’s frustration with these rulings produced the most radical attack on the Supreme Court in American history. FDR proposed legislation to “purge” the Court of what he called “government by senility”. Jawboning the justices for geriatric incompetence (imagine a president even suggesting this today), FDR wanted justices to retire at age seventy. For every justice who declined, FDR proposed adding a justice to the court – to a maximum court size of 15. Progressive apologists (called liberals today) for the plan said the president was “…giving the Supreme Court judges a dose of their own medicine – legalism.” One cannot appreciate how extreme the proposal really was without seeing material written at the time. A good example is “Purging the Supreme Court”, an article published in The Nation on February 13, 1937 (CXLIV, No. 7; 173), from which I furnish an excerpt: “What the President is proposing is to dynamite the reactionary judges into retirement. To effect this he uses the most convenient handle – old age. But it is a handle to a very real grievance, in the lower federal courts as well as in the Supreme Court. There are four sitting members of the Third Circuit Court of Appeals. Their average age is seventy-seven and one-half years. It is Judge Buffington of this court, over eighty-one, who has been holding up the Pennsylvania Greyhound case, involving the Wagner Labor Act, since 1935. With respect to the Supreme Court, the Roosevelt luck, it must be remembered, has not operated. No appointments have fallen to him. He has had to sit by helplessly and watch the years accumulate and men decay. He now presents the tory judges with the bitterest hemlock cup any tory has had to quaff. Six of the present court are over seventy, only one of them – Brandeis – definitely a liberal. If they genuinely wish to keep the court from being "packed," they can hold the number down to nine by retiring. Whichever ones do not choose to retire must bear the responsibility of permanently increasing the court's number by that many.” The uproar that would greet such a proposal today – especially if made by a Republican president – can scarcely be imagined. Calls for impeachment would certainly come from Democrats – possibly even from Republicans. But 1937 was a different time. FDR was at the apex of his popularity. Many progressives believed his court-packing proposal was exactly the leadership needed for FDR’s revolutionary New Deal to take off. Nevertheless, the effort crashed. A Democratic-majority Congress thought it was too radical and refused to enact it. FDR could not have everything he wanted. (I encourage my readers to read the Nation article in its entirety. (1)) But the initiative achieved the desired effect. As one political observer famously said, “The justices read the newspapers, too” – meaning that the Court could see what the political majority wanted and what blocking it might mean. FDR’s withering attack ended all Court opposition to the New Deal. Hugo Black’s 1937 elevation to the Court also broke the appointment log-jam. Ultimately, FDR appointed eight new justices – most of any president. All were progressives.(2) Like FDR, Mr. Bush faces a Supreme Court whose rulings cross his party’s interests – often on matters Republicans wish the Court would avoid (e.g., religion, sodomy laws, abortion, homosexual marriage, etc.). As in ‘37, the Court is aged. Two justices are in their 80s, two in their 70s, and four in their late 60s. Only Clarence Thomas is under 60. (3) The average age of the justices is currently 71. Zero appointments in his first term is something else Mr. Bush shares with FDR. No vacancy has occurred on the Court since 1994 – one of the longest such spans in history. The Court’s members seem frozen in place. Although Mr. Bush will not serve eight more years, as did FDR, he should be able to select new justices during his final term. The jury is out (so to speak) on whether the Senate will let him appoint the justices he wants. A larger question is whether Mr. Bush can “persuade” the Court to conform to his party’s vision. By temperament, Mr. Bush seems inclined to let the Court operate without political interference. He is not an imperious political leader in FDR’s mold. (Of course, anything resembling FDR’s age-bashing strategy would fail.) But in the wake of the Senate’s filibuster-wars – with the likely resignation of Chief Justice Rehnquist looming – the time seems ripe for Mr. Bush to let the Supreme Court know what is expected of it. FDR’s monster-mash act scared the Court into line. Mr. Bush has a different style. He might let the Congress be the heavy, while he takes a more subtle approach – perhaps a private meeting with Mr. Rehnquist or with a key justice whom he plans to elevate to Chief Justice. However he does it, Mr. Bush needs to signal the Court that the wide-open days of counter-cultural rulings which enrage the country must end. Democrats in the Senate have recently comprehended this. Now the Court must understand it, too. You’re never too old to learn. ******* (1) http://newdeal.feri.org/court/nation.htm (2) Mr. Roosevelt’s appointments (alphabetically): Hugo L. Black, James F. Byrnes, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Frank Murphy, Stanley Reed, Wiley B. Rutledge. (3) Current Supreme Court justices and ages: Stevens, 85; Rehnquist, 80; O’Connor, 75; Ginzberg, 72; Kennedy, 69; Scalia, 69; Breyer, 67; Souter, 66; Thomas, 57.
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