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CHAPTER TWENTY-FOUR
To Turn the Tide
But all those who are devoted to our American way of life and who believe it is worth saving against the encroachments of the collectivist sappers are agreed that, if it is to survive, something must be done about the Supreme Court.
A number of proposals have been made—and undoubtedly more will be made in the future—for dealing with this great crisis in our history. The major ones so far put forth are listed here, with a brief explanation or discussion of the points involved, so that Americans will know what they are and be able to think intelligently about them and about the overriding problem of our times with which they are meant to deal.
First, of course, is the constitutional provision which states that any official of the United States “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The Constitution also provides that judges “shall hold their office during good behavior.” The impeachment process, of course, is a long, difficult, and cumbersome one and has been used only a very few times in our history. Yet it is well for us to remember that it is there—to be used whenever the charges are such as to justify a trial for impeachment by the Senate, whose members are the representatives of the sovereign states; and, let us add, whenever the sovereign states and their citizens—who in the end constitute the ultimate jury—give their backing to the senators who represent them in what is, at best, a difficult proceeding.
The next group of proposals has to do with the appointment, tenure, qualifications, and service of the justices themselves. There are four of these proposals:
First: That a limit—four, six, or ten years—be placed on the terms of Supreme Court justices. At present, the justices are appointed to serve “during good behavior,” which generally has meant for life. But congressmen, senators, even the President, serve for fixed terms. Why, it is asked, should not the justices?
Second: That justices be reconfirmed by the Senate at stated intervals. This proposal was first made by David Lawrence. At present, the justices are confirmed only once—when first named to the bench. Mr. Lawrence’s suggestion would give the Senate a check on the justices, say every four years or so.
Third: That at least one of each two successive nominees to the Court should have had ten years of judicial experience. This proposal was first made by Senator John Stennis and has since been taken up by others. It stems from a startling discovery which the Senator made—that since 1932 the Court has departed on thirty-five occasions from decisions previously rendered, whereas there had been only twenty-nine such reversals in the entire history of the Court before 1932. In other words, in 143 years of its history the Court reversed previous decisions only twenty-nine times. But in just the last twenty-five years it has reversed previous decisions thirty-five times.
Fourth: That the President be deprived of the power of federal court appointments entirely and that the Senate should elect all federal judges.
It would seem that the adoption of the second proposal—that the justices be reconfirmed at stated intervals by the Senate—might do away with the necessity of the first one—placing a limit on their terms of office. It could be stated that if the Senate wished to give no reason for not reconfirming, no stigma would be attached to the lack of approval by the Senate. This would enable the Senate to drop a justice who, for instance, may have grown too old to carry on the work of the Court but who refuses to retire. And certain retirement benefits could be kept in force even for justices who could not pass muster with the Senate but who had not reached the retirement age. That would obviate any charge that the Senate was taking away a justice’s livelihood in refusing to reconfirm him in his job on the Court.
But the major effect of both proposals—that justices serve fixed terms or stand for reconfirmation by the Senate, or both—would be on the justices themselves. It would take them out of the privileged class in which they are answerable to no one and place them where they belong as the public servants of a federal republic. They would become answerable to the representatives of the sovereign states, without which states there would be no federal republic—and no Supreme Court.
As to Senator Stennis’s proposal that at least one of each two successive nominees to the Court should have had at least ten years of previous judicial experience, no one who has read thus far in this book could doubt the necessity for such a reform. If we apply some such rule to the members of the Supreme Court appointed since 1937, when packing began, we can see how far short they fall on judicial experience. There have been seventeen appointments since that time (including the Eisen-hower appointees as of this writing). Their total previous judicial experience amounts to thirty-seven and a half years—and that includes Justice Black’s eighteen months as a police-court judge and Justice Murphy’s service on a City Recorder’s court. If we assume that each should have had at least ten years of previous experience—a total of 170 years—we can see that our last seventeen justices have fallen short of that logical minimum by 132½ years.
In fact, it would seem that Senator Stennis’s proposal does not go quite far enough—that all justices should be required to have had considerable previous judicial experience or that the exceptions should be at least highly eminent authorities on constitutional law.
It would also seem that at least part, if not all, of this previous experience should have been gained in service on the highest courts of the states, rather than solely in the federal judiciary. Many careful observers of our federal courts are of the opinion that they have reached their lowest level in recent years because of the long tenure in office of New Deal-Fair Deal-“Modern Republican” presidents. Certainly during the Roosevelt-Truman regimes many appointments to federal judgeships were made without regard to quality and chiefly on the basis of political expediency and reward.
Appointments or election to Supreme or Appellate courts in the states, on the other hand, generally go to men who have gained a well-earned reputation for legal and judicial sagacity among people who are able to watch them closely—the citizens of their own states. This is not to say, of course, that all state judges are of Supreme Court caliber or that all federal judges are not. But, generally speaking, the caliber of a man who has risen to a post on the highest court of his state is likely to be a good deal higher than that of a political hack who got a federal-court appointment because he voted “right” on this or that measure or delivered the precinct vote to the “right” presidential candidate. Also, a judge on a high state court is bound to be much more aware of the place of the sovereign states in our federal republic than is one who has served only on the federal courts.
This brings us to the fourth proposal in this group—that the President should be deprived entirely of all federal-court appointments—including those to the Supreme Court—and that the Senate should elect all federal judges. This will immediately raise the cry of “politics!”—the charge that such a reform will put all federal judgeships at the mercy of the political pulling and hauling in the Senate. We may well ask what they have been at the mercy of for the past two decades—if not the political machinations of presidents surrounded by social revolutionaries who would change our whole form of government and life?
In the case of federal judgeships below the Supreme Court level, had they been elected by the Senate in the past twenty years they would at least be a good deal more diversified as to political adherence than the presidential appointees. After all, we did have a few Senates in which the opposition to the president was in the majority.
As to Supreme Court appointments, could the Senate have done any worse than Messrs. Roosevelt, Truman, and Eisenhower? Certainly this is a proposal that should be carefully considered. Perhaps a wise course would be for the Senate to name two or three qualified men from among whom the President would have to make his choice. And this would be within the spirit of the Constitution, which says the President should make appointments to the Supreme Court by and with the advice and consent of the Senate.
This brings up, of course, the role of the Senate in the Supreme Court appointments of the past twenty years. There is no dodging the fact that, while our last three presidents have been busy packing the Court, the Senate of the United States has not been blameless. Had it so chosen, the Senate could have blocked any one of those appointments. There were bitter fights on some of them, but in the end the Senate went along and approved the appointments. This is one more evidence of the distance we have strayed from our traditional form of government. The senators, who are supposed to represent the sovereign states of the American Union, have been so busy appeasing an Executive with billions of dollars of taxpayers’ money to dole out that they have in many cases forgotten why they are in Washington.
Nevertheless, in Supreme Court appointments up to now the Senate has been faced with more or less of a presidential fait accompli. Were the Senate itself to initiate the appointments, it could very well be a good deal more independent of the Executive, particularly if the members felt the pressure of an aroused constituency which was watching carefully the caliber of the men named to the highest court in the land.
Most, if not all, of the above proposals would require constitutional amendment. And they would not, of course, affect the Court as at present constituted. Neither of these is a good reason why they should not be pushed, since, if reform of the Court is needed—and we can no longer doubt that it is—some such action is of paramount importance for the future as well as now.
However, there are two other proposals which open the way to us to do something right now about the precarious constitutional crisis in which the packed Supreme Court has involved us.
The first of these is nearly as old as our government itself. It has been used on a number of occasions—both successfully and unsuccessfully—by the sovereign states. It is called “interposition” and has most recently been fully expounded by the brilliant young editor of the Richmond News-Leader, James Jackson Kilpatrick. Anyone interested in our past experiences with interposition could not do better than to read Mr. Kilpatrick’s excellent volume The Sovereign States: Notes of a Citizen of Virginia.
Interposition is based on the Virginia Declaration of 1798, written by Thomas Jefferson and James Madison. That resolution reads:
In case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact [the Constitution], the States who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.
What this means is that when the Executive or the Court violates the Constitution by usurping powers which the Constitution forbids, the states themselves—three fourths of which form a power without which there would be no Constitution and no federal government—must interpose to “arrest the progress of the evil” being committed by their own creature (the federal government) and force it to conform to the body of laws (the Constitution) which the states set up to govern its conduct.
Interposition, of course, is within the power of the sovereign states, as states. Whether any single one alone or a group of them together will have the intestinal fortitude—after a quarter of a century of standing in line with their hats in their hands before the Executive in Washington—to recapture for themselves their historic role in the Republic, remains to be seen.
The other proposal offers the greatest hope of success at the moment. It requires no constitutional amendment—only action by the people’s representatives in the Congress of the United States. It is entirely within the Constitution—in fact, it is specifically provided for in our great Charter in the following words (Art. III, Sec. 2):
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
This section means that Congress can make regulations and exceptions as to the type and kind of cases which could be taken on appeal from lower courts to the Supreme Court. In other words, Congress could say, for instance, that once a state court has upheld the constitutionality of a state sedition law, or a state school law, or once a lower federal court has upheld the right of Congress itself to protect the citizens against subversion, the matter would end right there. The Supreme Court would have no right to hear such cases on appeal and reverse the decisions. Congress could, for example, pass a law providing that the Supreme Court must not review any cases having to do with schools or education—traditionally and constitutionally always state problems. Such cases would be left where they belong—in the state courts. If an educational problem involving a federal question should come up, Congress could specify that only then would it go to a federal district court, whose judgment would be final.
The same process could be applied by Congress to laws affecting subversion—laws designed to protect us and our liberties from the onslaughts of the communist conspiracy. In fact, a committee of the American Bar Association, in July, 1957, called on Congress to pass legislation which would, in effect, wipe out the long string of procommunist decisions of the Warren Supreme Court. The Bar Association committee demanded legislation to:
Keep the FBI files confidential.
Allow schools, colleges, and bar associations to refuse employment or membership to persons who won’t answer questions about past or present communist activities.
Permit congressional investigating committees to question suspected subversives as freely as they do businessmen and labor leaders.
Allow the Justice Department to question aliens awaiting deportation about any subversive associations.
Correct the Warren Court’s gratuitous edict that under the Smith Act, it is all right to urge the violent overthrow of the government so long as you don’t spell out how it is to be overthrown.
These recommendations of the American Bar Association committee were read by the committee’s chairman, former Senator Herbert R. O’Conor, to the 3,000 delegates of the American Bar Association at its 80th annual convention in London—the same convention at which Chief Justice Warren appeared on the platform in a chocolate-colored suit to the dismay or amusement of assembled guests. The 3,000 delegates applauded Senator O’Conor’s report vigorously. But its impact on the mind of the Chief Justice of the United States, so far as anybody has been able to determine, was nil.
However, the fact remains that Congress has it within its power to correct many of the evils which the packed Supreme Court has visited upon us. According to some authorities, Congress can even specify by law what constitutes “good behavior” on the part of the justices—and should they go outside or beyond those specifications, they would become answerable to the Congress in proving that they should continue to hold their high posts.
When we say that Congress has it within its power to curb the runaway Supreme Court, in the final analysis that means a power which resides in you—the free American citizen. Congress is always only as good or as bad as you—who elect its members and keep them in office—make it. You can sit back in complacent despair and say: “Oh, what’s the use? Congress pays no attention to what we want.” If you do, you have no one to blame but yourself if the Supreme Court continues to ride roughshod over your liberties. But if you and enough other Americans demand that Congress rescue from the nine usurpers on the bench the tattered charter of freedom, repair it, and restore it to the people, you will be amazed at how quickly the demand will bring action. But the demand must be persistent enough, vocal enough, and numerous enough to overcome the pressures of the loud and organized minorities who are ever vigilant in their own interests. The greater interest is the liberties of a free people—and freedom-loving people far outnumber all the vocal minorities combined. They have only to make their voices heard and their numbers felt.
There is one final proposal to reverse the usurpations of the Supreme Court. It was made by the well-known writer and commentator John T. Flynn. Aside from immediate congressional action as outlined above, it would seem to be a necessary prerequisite to all other reforms of the Court. It is that all decisions of the Supreme Court, from 1937 to the date of the adoption of the proposal, should be declared to have no force and effect as precedents in judicial or other proceedings in determining the meaning of the words, sections, and provisions of the Constitution.
The purpose here is obvious. It is to enable all future Supreme Courts, no matter how otherwise reformed, to disregard the usurpations of the Court in the last twenty years. The justices would return to the body of law and precedents set up before the usurpations began in order to decide on all future cases that would come before them.
This proposal, of course, would require a constitutional amendment. But, once again, do not despair. The amendment process seems a long one—passage by two thirds of both houses of Congress and three fourths of the states. But we have amended the Constitution twenty-two times since its adoption—in some instances with a good deal of speed—and in many cases on questions of relatively minor importance compared with the overwhelming urgency of the one which now faces us. Nowhere, at no time in our history, as we contemplate the Supreme Court and its attack on our liberties, do the words of Edmund Burke have a greater meaning for us: “All that is necessary for the triumph of evil is that good men do nothing.”
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