Excerpts from the Senate Debate
U.S. Congress. Senate.
SENATOR JOSEPH T. ROBINSON. Mr. President, those who have collaborated in the
preparation of the substitute amendment, particularly including the Senator from Kentucky
(Mr. Logan), the Senator from New Mexico (Mr. Hatch), and myself, have had in mind the
criticisms which have been directed in public addresses, and in news and magazine
articles, against the original bill, presented by the Senator from Arizona (Mr. Ashurst),
the chairman of the Committee on the Judiciary, very shortly after the President sent to
the Congress his message on this important subject.
As everyone who hears me realizes, there has been great diversity of opinion not
only among those who are opposed to any legislation providing for the reorganization of
the Federal courts, but also among those who feel that conditions justify, if they do not
require, a change in our statutes relating to the questions at issue.
The substitute amendment provides for the appointment of one Justice in each
calendar year in relation to such Justices of the Supreme Court as may be serving after
they have reached the age of 75 years. There seems to be widespread if not general or
universal sentiment in favor of the retirement of Justices who have attained that age. It
is not that all men who reach 75 lose their powers of reasoning or of judgment, but it is
that by common acceptance those who have passed beyond 75 usually are in a state of mental
and physical decline. Our statutes have recognized the wisdom and the necessity for judges
who have the physical vigor to perform the tasks that are assigned to them. Heretofore
provision has been made for voluntary retirement at the age of 70 years, and that policy
has not only been approved in general public opinion but it has been advocated by some
Justices of the Supreme Court who now have passed far beyond 70 years, and who quite
naturally are unable to apply to themselves the theory and the doctrine they have sought
to apply to other judges.
The statute, as proposed in the pending amendment in the nature of a substitute,
permits the appointment by the President of one additional Justice of the Supreme Court in
each calendar year where a Justice or Justices are serving beyond the age of 75. I know it
has been said by some, and I expect that it will be repeated in the memorable debate that
is to follow my statement, that the principle incorporated in this legislation in the
particular to which I am now referring is erroneous, that it is disregardful of the spirit
of the Federal Constitution, that it tends to give to the President dictatorial powers.
Later, during the course of the debate, it may be my privilege to elaborate the arguments
which appear to me consistently to refute that contention. It suffices for my purpose on
this occasion to say that during the course of this prolonged controversy Senators who
lead the opposition to any legislation have introduced constitutional amendments
substantially conforming to the provisions of this bill.
No moral or legal reason can be assigned in justification to resorting to the
complicated and difficult process of constitutional amendment in preference to the
legislative process if it appears that the legislative proposal is itself within the
Constitution. I make the declaration now, in order that it may be considered by those who
oppose the position I take, that no serious question has been raised by any lawyer, either
in this body or in the country at large, that it is within the power of the Congress to
enact the legislation contemplated in the proposed substitute; and, if that be true, then
the only question left in that particular is one of policy. Manifestly it is neither
necessary nor desirable to resort to the slow and difficult process of amending the
Constitution if substantially the same ends may be brought about by the enactment of
MR. AUSTIN. Mr. President, will the Senator yield?
MR. ROBINSON. I yield to the Senator from Vermont.
MR. AUSTIN. My question is this: Does not the Senator from Arkansas consider it just
as bad, from a legal point of view and from a moral point of view, if the bill by natural
effect and consequence terminates the tenure of office at a point less than for life, as
it would if it contained a complete and express statement of a tenure that was less than
life, fixed by an act of Congress and not by an amendment to the Constitution?
MR. ROBINSON. The Senator's question answers itself. No lawyer would say that
Congress has the power to limit the tenure of a Justice of the Supreme Court to less than
life and good behavior, and therefore, no proposal of that nature is presented. But there
is, and there has been for more than 50 years, a feeling in the country among those who
constitute its citizenship that men are not always conscious of the time when they have
passed the climax of their usefulness. It is well illustrated in politics. One who has
served long and well is seldom, if ever, conscious of his failing powers, and he keeps on
running for office, running and running and running, until everyone gets tired of him and
until some man whom he considers his inferior defeats him for office. (Laughter.)
MR. BURKE and MR. MINTON addressed the Chair.
MR. ROBINSON. I have often thought that politics is not an occupation; it is a
disease (laughter); and, by the Eternal, when it gets in the blood and brain, there is no
cure for it. (Laughter.)
MR. LEWIS. Mr. President
MR. ROBINSON. Just a moment. I have seen dozens of men, discredited and rejected by
their constituents, sit on the fence and in the exercise of their "imaginatory"
powers I quote now the Senator from Vermont see strange hands beckoning them
out of the darkness and hear mysterious voices calling them back to run for office
MR. ROBINSON. I yield now, first, to the Senator from Indiana.
MR. MINTON. In connection with the proposition the Senator is so ably discussing, I
suppose he would accept a statement from very high authority on that point, namely, the
present Chief Justice of the United States. In 1928 Chief Justice Hughes said:
MR. ROBINSON. My favorite authority on that subject is not Mr. Chief Justice Hughes;
it is Mr. Justice McReynolds.
MR. MINTON. If the Senator will permit me, I will also quote what Mr. Justice
MR. ROBINSON. I myself am going to read that. The Senator could probably make this
speech much more effectively than I can make it, but I still maintain that, as a Senator,
I have some right to talk a little within my own time.
In October 1914, when the Associate Justice, Mr. McReynolds, was Attorney General,
he submitted a report which no doubt is in the mind and memory of my good friend the
Senator from Indiana (Mr. Minton). In the performance of his duties he sent an urgent
recommendation to Congress, and I shall now read it:
- Some judges have stayed too long on the bench. It is extraordinary how reluctant aged
judges are to retire and to give up their accustomed work. I agree that the importance in
the Supreme Court of avoiding the risk of having judges who are unable properly to do
their work and yet insist on remaining on the bench is too great to permit chances to be
taken, and any age selected must be somewhat arbitrary, as the time of the failing in
mental power differs widely.
- Judges of the United States courts, at the age of 70, after having served 10 years, may
retire upon full pay. In the past many judges have availed themselves of this privilege.
Some, however, have remained upon the bench long beyond the time they are adequately able
to discharge their duties, and in consequence the administration of justice has suffered.
I suggest an act
Not a constitutional amendment, I remind the Senator from Nebraska (Mr. Burke); just an
It is true that Mr. Justice McReynolds, then Attorney General, limited his
recommendation to the inferior courts, the circuit and district courts of the United
States, but there is no difference in principle if the doctrine be applied to the Supreme
Court as well as to the inferior courts.
MR. MINTON. Mr. President, will the Senator yield further?
MR. ROBINSON. I yield to the Senator from Indiana.
MR. MINTON. I may fortify the Senator's splendid argument with another high
authority, another Chief Justice of the United States Supreme Court. He did not limit it
to the lower courts and he did not put the age at 75. I refer to the late Honorable Chief
Justice Taft, who said:
- I suggest an act providing that when any judge of a Federal court below the Supreme
Court fails to avail himself of the privilege of retiring now granted by law, that the
President be required, with the advice and consent of the Senate, to appoint another judge
who would preside over the affairs of the court and have precedence over the older one.
This will insure at all times the presence of a judge sufficiently active to discharge
promptly and adequately the duties of the court.
MR. BURKE. Mr. President, will the Senator yield further?
MR. ROBINSON. Certainly.
MR. BURKE. The Senator has stated his view of the matter, that this is an unlimited
power possessed by Congress to make the Court 10 or 15 or 100, if they wish, and for any
purpose or motive that may appeal to the Congress. Do I correctly state the Senator's
MR. ROBINSON. Yes. I think there is no limitation in the Constitution on the power
of the Congress to prescribe the number of Justices that shall compose the Supreme Court.
I would not say it is sound policy to exercise that power for a bad motive, but the power
exists, and that is sufficient for this argument.
MR. BURKE. The Senator feels that there is no merit whatever in the position of
those who take the view that the reason why the framers of the Constitution did not say,
"We shall have a Supreme Court of a certain number," was that Congress might be
free to give us at any time a Court of a size that could promptly and efficiently do the
work of the Court, and that Congress has no power within the spirit of the Constitution to
add any members to the Court for any other purpose.
MR. ASHURST. Mr. President
Mr. ROBINSON. No, Mr. President; I do not make that statement. The Senator knows I
declined to pass judgment on the motives which prompted the framers of the Constitution to
leave this power in the Congress. It is a very strong argument that the Senator from
Nebraska does not question the existence of the power.
I am glad to yield now to the Senator from Arizona.
MR. ASHURST. Mr. President, when the framers of the Constitution came to create the
Supreme Court, they did not by mere accident or inadvertence grant to Congress the power
to exercise checks against the overreaching of the liberties of the people by the Court.
Many, if not most, of the members of the Convention were scholars; some of them had
studied law in the Middle Temple in London, and most, if not all, of the members were
familiar with the judicial tyranny which had taken place in England during the troubled
period of the Stuarts and other reigns preceding the drafting of the Constitution.
The framers took meticulous care and much pains, scholars and historians as they
were, to see to it that the judicial power they granted to the courts should never run so
riot as to thwart the will of the American people. Hence, they not only deliberately made
Congress the body that should fix the number of the members of the Court, but they even
went so far as to deny the Court the right to fix its own jurisdiction, and the question
of jurisdiction of that Court is, within certain limitations, subject to the right and
power of Congress to change and modify as and when Congress sees fit.
The framers did not permit the Supreme Court to be the judge of the qualifications
of its own members. The framers required the Court to depend upon the Congress for
appropriations for its expenses; yea, even its own bailiff.
Nothing in all the history of the Constitution making is more clear than that the
makers deliberately saw to it that no judicial branch should be set up that would
overreach the legislative branch or the executive branch.
The makers were wise enough also to repose in Congress the legislative power and to
grant the Court the Judicial power.
I had not intended to interrupt the able speech of the Senator from Arkansas, but
whatever may have been said about this proposed legislation, no lawyer in America has ever
said that this bill, if it should become the law, would take any judicial power from the
Supreme Court of the United States.
If this bill passes, the courts will possess and exercise the same judicial power
they had before, and I venture the assertion that if this bill took any judicial power
from the Supreme Court of the United States, there would not be 5 votes for it....
MR. ASHURST. I apologize to the Senator for interrupting him.
MR. ROBINSON. No; the Senator must not apologize. He has contributed very
effectively to my remarks; but I am prompted by the question of the Senator from Nebraska,
and by the answer that has been made to that question by the Senator from Arizona, to say
that my judgment is that the justification for this legislation lies in large part in the
fact that the Supreme Court, according to members of that body and according to great
Members of the Senate, have gone outside the sphere of their jurisdiction, which is to
interpret and apply the laws, and have entered the realm exclusively ascribed to the
Congress by the Constitution the realm of defining public policies.
I see before me today great Senators, whose names will go down in history among the
immortals, who have made that statement on the floor of the Senate of the United States,
and who now apparently have forgotten the position they took in days gone by. In another
address, on a different occasion, it is my intention to show some of the instances in
which the Court went outside the sphere of judicial interpretation, and literally wrote
into the statutes words that Congress did not incorporate in them, and changed and gave
unnatural meanings to words which had better have been naturally interpreted.
In doing that I do not say that the Supreme Court acted corruptly, or that its
members were conscious of trespassing upon the jurisdiction of the legislative department.
I do affirm, and believe myself able to prove to a jury of lawyers, that the Court is
responsible for many of the troubles against which we are now legislating, because it gave
unnatural and illogical definitions to terms employed by the Congress in enacting
MR. BURKE. Mr. President, will the Senator yield?
MR. ROBINSON. I yield to the Senator from Nebraska.
MR. BURKE. Even at the risk of making somewhat of a nuisance of myself
MR. ROBINSON. Oh, the Senator cannot do that.
MR. BURKE. I am afraid he has already done it.
MR. ROBINSON. The Senator never makes a nuisance of himself. Whenever he is a
nuisance, Nature does it for him. (Laughter.)
MR. BURKE. Very well; but, passing that over, I think it is important that at the
start we find out as definitely as we can something of the purpose of this bill. As I
understand, the Senator now takes the position that because the Supreme Court, in the
opinion of some persons and in his own opinion, has at times gone outside its own
function, therefore, it is now proper and legitimate for Congress to make over the Court
to some extent in order to see that that does not happen again. Is that the point?
MR. ROBINSON. That is not a very bad statement of my position. It is not entirely
accurate; but the thought does appeal to me that if the judiciary trespasses on the
jurisdiction of the legislative department, and undertakes, in interpreting statutes, to
say what is sound or unsound public policy, Congress has the right yea, it may be
the duty of the legislative branch of the Government to exercise such powers as it
possesses to prevent that usurpation of authority; and the Senator from Nebraska and any
other Senator may make the most of that admission.
Mr. BURKE. Mr. President, if I may ask just one other question
Mr. Robinson. Yes.
MR. BURKE. Will the Senator, in the course of his remarks I do not ask him to
do it now, but in his own good time explain to us how he can reconcile the statement he
has just made with the principle that we have in this country, and desire to maintain, an
MR. ROBINSON. Why, certainly certainly. Independence of the judiciary does not
involve or imply usurpation by the judiciary. If the Senator cannot see that without an
elaboration of the argument, I think I had better appeal to other minds. My theory is that
the demand for this legislation arises principally not entirely, but
principally out of the fact that the judiciary, not only in the Supreme Court but
even in the lower courts, have from time to time confused the question of power with the
issue of policy. Do you get it? They have decided that the exercise of a power by the
Congress is unconstitutional in some instances when they disapproved the public policy
involved in the legislation. That is wrong; and the efforts to prevent it have no sensible
relation to the independence of the judiciary. The judiciary must be independent in the
sphere ascribed to it by the Constitution. It must not be an outlaw in any other sphere.
The mere fact that there is no appeal from the Supreme Court of the United States gives
that Court no right to violate constitutional limitations imposed by law and by reason on
its own authority.
MR. MINTON. Mr. President, will the Senator yield?
MR. ROBINSON. I yield.
MR. MINTON. If the Supreme Court is doing what the Senator says it is doing and it
is, and has done it times out of number then it is exercising a legislative function.
MR. ROBINSON. Certainly.
MR. MINTON. And if it is exercising a legislative function, there is no place to
which to turn for the redress of a legislative function except the legislature.
MR. ROBINSON. The proposition is self-evident. The Senator has stated it better and
more accurately than I could state it.
MR. BORAH. Mr. President
MR. ROBINSON. I yield to the Senator from Idaho.
MR. BORAH. If the Supreme Court up to the present time has been exercising
legislative power, in what respect does this bill prevent it from exercising legislative
power in the future?
MR. ROBINSON. There is not any way by which the Congress can prevent a judge from
doing the wrong thing; but the theory of the bill is that it will gradually place on the
bench those who will respect, as a primary consideration, the limitations on their own
authority. I do not ask you to take my word. I will ask you to take the word of the
Senator from Idaho himself.
In 1930, I think, the Senator from Idaho arose on this floor and made an eloquent
appeal against the confirmation of a great Chief Justice, solely on the theory that that
Chief Justice was disposed to decide questions of public policy rather than questions of
limitation on the power of the lawmaking body. The Senator from Idaho may take from now
until the end of the threatened filibuster to explain his attitude on that occasion; and
he was not alone in that attitude. At the same time a dozen other Senators, among them the
brightest and the bravest who are opposing this bill, sought to prevent the confirmation
of Mr. Chief Justice Hughes on the theory that Mr. Hughes would lead the Court out of the
proper sphere of judicial determination into the realm of legislation. They could not say
anything against his character other than that. They could not question his personal
integrity, but they fought him to the bitter death; and I cabled back from London, where I
had gone on a mission for the Government, my vote in support of Mr. Hughes, because I
believed him to be an honest and an able man. The issue was acute; it was tense; it was
hard fought, and there was a large vote in the Senate. At one time it was thought doubtful
whether he would be confirmed. The opposition rested their argument solely on the ground
that he would legislate as a judge....
MR. BARKEEY. Mr. President, will the Senator yield?
MR. ROBINSON. I yield.
MR. BARKEEY. Is it not true that in the able address made on that occasion by the
Senator from Idaho, when asked by another Member of the Senate whether he would remedy the
situation by amending the Constitution, he replied no, he would amend the Court?
MR. ROBINSON. Oh, yes. The Senator from Idaho did not then have any sympathy with
amending the Constitution, because he said the same old judges would read an erroneous
interpretation into any amendment which might be made, so he favored amending the Court.
He may take the pending bill as in a sense an "amendment of the Court," if he
wishes to do so, but when he makes an argument against it on that ground, I reply to him
in his own language well considered, forceful, and influential.
MR. STEIWER. Mr. President, will the Senator yield?
MR. ROBINSON. I yield.
MR. STEIWER. If the members of the Court are disposed to indulge in legislation,
that is to say, to assert their views upon policies rather than their views upon law
MR. ROBINSON. Not always; sometimes.
MR. STEIWER. I say, if that is the case
MR. ROBINSON. Has the Senator any doubt that that has been the case?
MR. STEIWER. I have no doubt about it in my own mind.
MR. ROBINSON. I am only searching the Senator's mind.
MR. STEIWER. If that is the case, is not the logical and proper means of reaching
that to object to the confirmation of the nomination of the judge and not merely to change
the composition of the Court?
MR. ROBINSON. I think that is caviling. After a judge is confirmed he is on the
bench for life, and there is no opportunity of knowing what he is going to decide except
to use the method employed by the Senator from Idaho and the Senator from Virginia, and
say, "From what he has done heretofore, from the clients he has represented, from the
methods used in other matters, I think he will be unfair to the public, unconsciously
unfair to the public."
Of course, if one knows about those things at the time confirmation occurs, and has
not confidence in the judge, he would do just what these Senators did in opposing Mr.
Justice Hughes. I cannot say that their judgment of Mr. Hughes is confirmed by the history
of his actions as the Chief Justice. I have great respect for that able lawyer. I regard
him as a learned and conscientious man, and do not wish to be construed as giving
endorsement to the arguments which were employed against his confirmation. I voted for his
confirmation . . .
SENATOR JOSEPH F. GUFFEY. Mr. President, as the subject of my remarks is largely
historical, and, I hope, noncontroversial, I request that my colleagues do not interrupt
me until I shall have concluded.
Mr. President, this is the age of political realism in the United States. The sham
battles that enlivened the atmosphere and amused the spectators in the gay days which
preceded the economic depression are a thing of the past. If the actors in the political
drama are still unaware of that fact, the audience is not.
The time has arrived when something more than lip service is demanded of those who
enlist under the banner of progressivism and liberalism. The people of this country are
aroused. They are distrustful of leaders who say, "I am for judicial reform, but I
dislike the President's method of accomplishing it." "I am for a bill
establishing minimum wages and maximum hours, but I disagree with details of the
administration's program." "I am for adequate farm relief legislation and a
decent income for farmers, but I disagree with many features of the administration
policy." "I am for conservation and social security and all those things, but I
think we ought to go slowly in writing them into law."
Mr. President, when a liberal puts the word "but" after his declaration of
political faith it is prima facie evidence either that he secretly believes in the
philosophy of reactionary Bourbonism or else he lacks the courage of his own convictions.
The test of office holding should no longer be what a man says he believes. The test
should be what he actually does and how he votes.
It is not my purpose to warn my colleagues or to criticize their actions. The
Democratic Party sits here today in overwhelming power because we went before the people
and solemnly pledged our selves to outlaw economic wrongs and injustices that have been
rankling and festering for generations. For the first time in many years political
promises were taken to have definite meaning. The voters in last November's election
entrusted into our hands the solemn duty of giving legal and concrete form to the social
and economic aspirations of the vast majority of American citizens.
This task lies ahead of us today. This task is bound up completely and inextricably
in the current effort of the Democratic Party to transform the United States Supreme Court
from a super legislative body that is above and beyond the law into the kind of impartial
tribunal for the adjudication of judicial disputes that it was originally intended to be.
It is futile for Senators to sit here legislating on the most vital aspects of
social and economic conditions, if they know in their hearts that what is being done may
be arbitrarily overturned by a few aged Justices who substitute their "own political
predilections" for the Constitution of the country. This game of political blind
man's bluff is about over.
There are persons who proclaim their belief in the purposes of the Roosevelt
administration and who believe that the Supreme Court sometime ago set itself against the
program of that administration, but who at the same time proclaim that it would be morally
wrong to do anything about the Court. I frankly cannot understand such a position, whether
it be taken by a Senator, a Member of the House of Representatives, or any other citizen.
Today the public expects something more than a mere recital of ideals and
aspirations. The outstanding lesson to be learned from the events of the past few years is
the fact that liberal and progressive forces of the Nation can write their program into
law, if they stand shoulder to shoulder fighting for the principles in which they profess
to believe. The people of progressive turn of mind are in the overwhelming majority in the
country, and there is no reason why they should be in a minority here in the Congress of
the United States.
The essence of democracy is majority rule. The American people, by a plurality never
before equaled in our history, indicated that they desired the enactment of a program of
social legislation to meet the conditions which exist today.
They did not ask Congress to think up a lot of legal quibbles and sophistries as to
why this cannot be done or that cannot be done. They experienced too much of that type of
negative statesmanship in the days of the unfortunate Mr. Hoover. What they want now is
not someone to tell them why this or that program cannot be enacted but to point out how
it can be enacted. The people would like a demonstration of the fact that progressivism in
politics means something more than a constant policy of obstruction and frustration.
In undertaking a discussion of President Roosevelt's program for judicial reform,
the first thing to strike the attention is the effort being made by those who oppose
social reform to paint the Supreme Court as a hallowed institution whose august members,
endowed with qualities of mind almost supernatural, have found a way to distill the pure
spirit of law free from the impurities and corrupting influence of bias, passion, or
This erroneous myth is being nourished with painful and loving care in the hope that
it may become implanted for all time to come as a sacred tradition in the consciousness of
the American people. As a matter of concrete fact, nothing could be further from the
truth. History shows conclusively that throughout most of its existence the Supreme Court
has been enmeshed in partisan party politics, that throughout most of its history it has
been openly hailed as the last bulwark of reaction, that its members frequently have been
appointed for political considerations, and that this spirit of partisan politics has been
very rampant in the present Court.
Unquestionably, the Court was conceived originally by the founding fathers as an
institution to be composed of men whose outlook and motivations took root in the rich soil
of national patriotism and whose zeal was to be directed to the promotion of even handed
justice and to the impartial interpretation of the Constitution. But in actual practice
the Court has fallen woefully short of that idea. The very fact of this debate here today
is sufficient evidence to prove that the Court has not played the role assigned to it.
If some of my colleagues are inclined to disagree, let me remind them that the most
severe criticisms of the course pursued by the supreme tribunal have come from Senators
who are now actively and heatedly opposing the Chief Executive's program of reform and
In all the welter of words and arguments over this issue, let us never lose sight of
the fundamental fact that this problem confronts us today because the Supreme Court of the
United States has been partisan, prejudiced, and biased in denying workingmen and farmers
their fundamental legal rights. That is the real core of the issue, and we may as well
state that fact bluntly and boldly. Had the Justices been half as zealous in up holding
the rights of the poor and lowly as they have been in protecting the property rights of
the wealthy, this problem would not be resting on the doorstep of the President and
In fact, it is accurate and fair to state that the present period of the Supreme
Court will go down in history as a time in which partisan politics played a role of great
magnitude both in the Court's deliberations and in its decisions.
At this point I think it wise to point out that the foundations for a political
court were deliberately laid by the Republican Party elders who ruled this country in the
decade following the World War. For proof of that statement, it is necessary only to refer
again to the letter written in 1920 by the late President William Howard Taft, and which
was first made public in a radio address by our majority leader, the Senator from Arkansas
(Mr. Robinson), a few weeks ago. Said Mr. Taft, in explaining why he was supporting the
Republican candidate for President:
- There is no doubt that there are judges at 70 who have ripe judgments, active minds, and
much physical vigor, and that they are able to perform their duties in a very satisfactory
way. Yet in a majority of cases when men come to be 70 they have lost vigor, their minds
are not as active, their senses not as acute, and their willingness to undertake great
labor is not so great as in younger men, and as we ought to have in judges who are to
perform the enormous task which falls to the lot of Supreme Court Justices....
Mr. Taft stated the case as baldly as it could be stated. Unless the Court was
packed with reactionaries who were in effect pledged to oppose every enlightened economic
and social step taken by Congress, then the Court, to use his words, would lose its power
and influence. It will be noted that Mr. Taft was not concerned for a moment with the
legal and constitutional aspects of such a question.
What happened? The Republican candidate, Mr. Harding, was elected and the Court was
soundly and solidly packed by him to such an extent that legislation to protect the farmer
and the working man was doomed almost before it was passed.
That was the situation when Mr. Roosevelt came into office, carrying with him a
mandate from the mass of American people to reestablish the principle of equal justice
under majority rule. That is the condition which has existed almost to this hour. Until
the last couple of months, the supreme political power in this country has been the
Supreme Court of the United States, and its grip has been broken only by the courage and
the single-minded purpose of President Franklin D. Roosevelt.
It is all very well for my colleagues to work themselves into a fury of indignation
over Mr. Roosevelt's proposal to enlarge the Supreme Court. It is their privilege to view
with alarm and to thunder from the mountaintop that the stricken Republic will totter to
its doom if any reorganization plan is enacted into law. It is their privilege to picture
this issue as a struggle on their part to preserve unsullied and unharmed the springs and
sources of judicial power. But I venture to predict that their naive view will find little
support when the story of this era is written into history.
The men and women who look at this controversy with the proper degree of detachment
will see this struggle for what it is a contest for political power between two
opposing groups whose political philosophies are diametrically opposed. Any man who
contends that the Supreme Court itself has not indulged in politics in the last few months
is either totally ignorant of what has happened or he has a childlike faith in human
nature that is wholly out of place in the realistic sphere of public affairs.
The record now shows positively that until a few months ago a majority of the
members of the Supreme Court of the United States were engaged in the dubious business of
blocking the social reform program of the Roosevelt administration.
We have already seen how the appointment of reactionary judges was a cardinal
doctrine in the program of Republican leaders. We can trace the subsequent decisions of
these judges on the bench, and we find that in almost every case their so-called judicial
opinions were identical with their views on current political questions. In fact, the
similarity is too glaring to pass for coincidence....
The resignation of Mr. Justice Van Devanter, coming as it did on the morning when
the Senate Judiciary Committee was voting on the reorganization bill, was especially well
timed. The country, in fact, has enjoyed the spectacle of the political battling between
the respective leaders.
But the people of the United States have a different way of looking at these things.
They know an about face when they observe one, and they are sensible enough to know why
such things happen. Facts are more impressive to the public than oratory.
It was a glorious day of triumph for the working people of this country when that
odious decision of the Supreme Court forbidding the enactment of State minimum wage laws
for women was swept aside; and let me say that the man responsible for that great humane
victory, singly and alone is President Franklin D. Roosevelt...
SENATOR BURTON K. WHEELER. . . . When the bill was first introduced the Attorney
General of the United States in a radio speech used this language:
- Take, for instance, the four places likely to be filled by Wilson's successor on the
Supreme Court. Think of the danger of another Brandeis and Clark. The power and the
usefulness of that Court would be broken down under such appointments if the majority of
the Court were to be made up of them.
Why was it that immediately there was aroused such feeling that protests came from
the masses of the people of the country against the proposal? It was because they felt
that the bill was an attempt on the part of the administration to do by indirection what
it did not want to do by direction.
Again, Mr. President, after the appeal was made to the drought stricken farmers in
the Dust Bowl that we must immediately pack the Supreme Court in order to afford relief to
those farmers, and after an appeal was made to the flood victims along the Ohio River in
order to get them stirred up in favor of the proposal and to cause them to send protests
to their Senators who were opposed to it, we found another kind of appeal being made. We
found an appeal being made by the Postmaster General of the United States on the ground of
party loyalty. He contended that every Democrat ought to support the bill because of party
loyalty regardless to its effect upon the Constitution of the United States and regard
less of its violation of the spirit of the Constitution.
We heard Mr. Farley saying, "It is in the bag." In another place and at
another time he said, "We will let the Senate talk and then we will let the House
talk. Then we will call the roll. We have the votes." The press of the country after
the last election pronounced Mr. Farley one of the greatest prognosticators the country
had ever seen. Think of it, Mr. President, here in the United States the Postmaster
General has said, "We will let the Senate talk." Certainly, our constituents
ought to feel very grateful to the Postmaster General for permitting the Members of the
Senate of the United States, whom they have elected to office, to speak their minds in the
Senate. The constituents of the Members of the House of Representatives ought to feel very
grateful to the Postmaster General for condescending to let their Representatives speak
with reference to the bill.
Then men were sent into nearly every State in the Union to arouse the labor leaders
for the purpose of having them send protests and denunciations of Members of the Senate of
the United States who were opposed to the bill. Men were sent into my State. One man was
sent there who went to every labor organization in the State. I am told that he was on the
Government pay roll. He was seeking to persuade the labor organizations to adopt
resolutions not only in favor of the President's bill, but denouncing me. They went even
further than that; one of the farm leaders told me that for the first time in his life he
was invited to the White House, and it was suggested to him that he should go out and line
up the farm organizations in the Northwest against every Member of the House and every
Member of the Senate who dared to voice his opposition to the President's bill.
Something has been said about propaganda. We found the Secretary of Agriculture, by
the medium of the radio trying to line up the farmers of the country. Why? Not because he
knew anything about the Court proposal, not because he was particularly interested in this
piece of proposed legislation, but because the Congress of the United States had
appropriated money and placed it in his hands to take care of the drought stricken farmers
or those in need of relief; he alone could disburse this money to them, and the
implication, of course, was that unless this bill should be passed then the farmers would
not be able perhaps to get further appropriations from the Congress.
Then we find the Postmaster General lining up the postmasters throughout the
country. We find Mr. Harry Hopkins, of the W.P.A., on the radio, talking about the
Democratic Party and about the Court proposal. Why? Why should the head of Works Progress
Administration of the United States be propagandizing and trying to influence the people
on relief against Members of the Senate? Hopkins' great influence over relief clients
comes from the fact that he disburses money to them. But who appropriated that money?
Whose money was it? It was the money of the people of the United States, appropriated by
the Congress and turned over to Mr. Hopkins, and yet he is stirring up W.P.A. workers and
their dependents against Members of the Senate and Members of the House, and that is the
only reason why Hopkins spoke.
That spirit of intolerance with reference to the pending bill has prevailed and
pervaded the discussion right down to the present moment. Everyone who does not agree with
the administration on this proposal or who disagrees with the Attorney General is
denounced as an "economic royalist" and as one who has sold out to Wall Street.
Then we found the same spirit of intolerance prevailing in this Chamber yesterday,
disclosed by the amazing situation which developed here. When the debate had been
proceeding for only a couple of days and the opponents of the bill had not spoken at all,
but had merely asked questions of the proponents of the bill who were talking, a practice
which has been indulged in by the Senate from time immemorial, when no question of a
filibuster was involved at all, but only bonafide debate on the issues involved in the
bill, we were confronted with a sudden appeal for strict application of the rules. Was it
because the proponents of the bill are afraid of real debate?
Mr. Farley said, "We have the votes. It is in the bag." If it were
"in the bag," why did the proponents desert it? It was deserted and the great
prophet of the Democratic Party was wrong. They did not have the votes. They do not now
have the votes. They do not want the original hill debated, because they know that upon
legitimate debate they cannot sustain it. They know that while at the outset they
undoubtedly had 60 votes in favor of the original bill, which would have added six new
Justices to the Supreme Court, after the Members of the Senate heard or read the testimony
of those appearing before the Judiciary Committee, and after they had studied the bill,
one by one, and then two by two, and then by threes and fours, they deserted that bill,
until on the day before yesterday the Democratic leader of the Senate announced that the
reason why the proponents of the measure did not try to put forward the other bill was
because they did not have the votes to pass it. They say they have enough votes at the
present time to pass the compromise proposal, and then they appealed to party loyalty.
They said to the new Senators who have just been elected, "You ought to vote for this
bill because you rode in on the coattails of the President of the United States."
Thank God, I did not ride in on the coattails of the President of the United States!
Thank God, I do not have to go to him and ask him whether or not I have to follow the
Democratic leader in this new proposal! Those of you who rode in on the coattails of the
President of the United States will ride out on the coat tails of the President of the
United States if that is the only reason you are here.
I did not ride in on the coattails of any President of the United States. I did not
come here because I had promised to be 100 percent for the administration and to vote for
everything the President wanted.
There are those who were elected to the United States Senate on a platform of
"100 percent Roosevelt," but after assuming their seats in this body, when it
was politically expedient, they unhesitatingly cast their votes against the
administration. Now, however, some such Senators assert that they must vote for this bill
because of their campaign promise of supporting the President 100 per cent that
pledge is one that they keep or follow, utilize or discard as they deem is politically
No, Mr. President, I did not come to the Senate on the coattails of anyone; I came
to the Senate on my own, and I am responsible for what I do in the Senate. I expect the
people of my State to hold me responsible for my actions; and if I go out, I will go out
riding on my own coattails and not upon the coattails of anyone else.
Finally, Mr. President, we were told, "If you do not vote for this bill, you
will break the President's heart." Oh, dear! What a pity! "You are going to
break the President's heart if you do not vote for him on this bill."
If Senators are going to break the President's heart because they do not vote for
him on this bill, they ought to go back and vote for six new judges instead of voting for
the substitute, because we are told that this is not the President's bill. Oh, no; this is
not his bill. This is not what the President wanted. He wanted six new judges. And why did
he want six new judges? Because some of the proponents of the original bill said, "We
cannot trust less than four judges, and we ought to have six because some of the six might
go back on us; but if we cannot get six, the least we will take is four." Finally,
however, they have come down and have said, "We do not want six all at one time. That
was wrong. That was packing the Court; so now, instead of packing it all at once, we will
pack it by slow motion, and we will get the same result."
There is not the slightest difference in principle between this bill and the other
bill so far as the objectives sought to be attained by the proponents of the bills are
concerned. The only distinction between the original and this substitute Court bill is
that the latter packs the Supreme Court by slow motion....
Incidentally, who was it that declared the second Frazier-Lemke Act
unconstitutional? Whom do you suppose it was? Some judge appointed by this administration
out in Illinois or Pennsylvania appointed at the behest of the Senator from Pennsylvania
or the Senator from Illinois, one or both of them declared the law unconstitutional. The
case went to the Supreme Court of the United States, and that Court declared the act
After all, speaking of 5-to-4 decisions, do we want a Supreme Court that simply will
agree entirely with our viewpoint? Is that what we want? Let me call attention to the fact
that it is out of the clash of opinions that the truth comes. The worst thing that could
happen to Congress, the worst thing that could happen to the country, would be to have but
one strong political party. We get better legislation in this body because we have a clash
of opinions as to proposed legislation. We get better bills out of committees when we have
a clash of opinions. The American form of government depends upon the clash of opinions of
its people, and not upon a subservient people who are voting as they are told to vote
because they are getting hand-outs from the Treasury of the United States.
We are told that all the farmers of the country are for this measure. Let me say
that I was out in Montana not long ago. Many farmers came to see me and said, "I am
with the President. I do not know anything about this bill, but I am for it because I
think the President wants it." Labor leaders came to me and said to me, "I am
for the bill because I think the President wants it. I do not know any thing about
it." W.P.A. workers came to me and said, "I am on the public pay roll, and I
want the bill because the President wants it. That is the reason." I say to the
Members of the Senate, however, that practically every man with whom I have come in
contact, from one end of the country to the other, who has given the question any serious
thought or who knows anything about our problems or our Constitution is opposed to this
If the contention of those who favor the bill is correct, why have a written
Constitution at all? A great many persons in this country think there is not any need for
a written Constitution; but why do we have one? We have one, my friends, because my
forefathers, like the forefathers of most of the Senators, had left foreign shores, where
they had seen the tyranny of one-man government in Europe. Some of them had been driven
out of England by James I, who said to them, "Unless you conform, I will harass you
out of the country"; and he did harass them until they left that country. He drove
them to Holland, and then they came to America and settled upon the shores of this great
country of ours. They fought the American Revolution; they spilled their blood and many of
them died, all up and down the Atlantic seaboard, in order that you and I, their
posterity, might have a democratic form of government assured by a written Constitution.
When the framers of the Constitution met in the assembly in Philadelphia they did
not write the Constitution simply to protect themselves, but they remembered some of the
things that had occurred before. They remembered the six men of Dorset and the six farm
laborers who had assembled for the purpose of petitioning for higher wages, and were
banished from England for so doing. So they wrote into the Constitution of the United
States a provision that the right of free assemblage should be guaranteed in the United
States of America.
They wrote it into the Constitution because those six men were banished from England
and sent to Australia. They also wrote into the Constitution that no man should be
banished from this country on account of crime. Remembering that Mary, Queen of Scots,
before she was beheaded, asked and pleaded that she should be confronted with her
accusers, they wrote in to the Constitution of the United States that every accused person
should be confronted by his accusers, that he should have the right of trial by jury, and
that he should have the right to a writ of habeas corpus. They remembered that in European
countries the army had been able to enter a man's home and take possession of it; so they
wrote into the Constitution of the United States a provision to the effect that no
general, no Army officer, no matter whom he might be, in peacetime should be permitted to
quarter his troops in the home of a citizen; and if he tried to do so, the citizen could
say to him, "Go on down the road."
I might go on and enumerate the other provisions of the Bill of Rights, and say that
because of what had been done in Europe the forefathers not only wanted to lay down those
principles but they wanted to make those rights inalienable to the people of this country
for all time to come.
Oh, but it is said, "What has that to do with the Court packing bill?" If
four men can be put upon the Supreme Bench to override the Constitution of the United
States in one particular, they can say as to every other provision of the Constitution of
the United States that it shall be inoperative. They can say whatever they choose to say,
and make the Bill of Rights become as nothing to the people of this country....
SENATOR JOSEPH C. O'MAHONEY. Mr. President, I was remarking that the pending measure
in the nature of a substitute has been presented to this body without an explanation. I
think it ought to be made clear to the Senate and to the country that we are not
discussing a personal issue; we are discussing a system for the reorganization of the
judiciary of the United States. The issue before this body is not the election of 1940, as
some Senators seem to imagine; the issue before this body is not the New Deal, as some
Senators would like to have the country believe; the issue before this body is not the
record of Franklin D. Roosevelt, as some Senators would like us to believe. The issue
before this body is whether or not we are going to adopt a system for the judiciary of the
United States vastly different from anything which has ever existed in the history of our
We are rapidly approaching the one hundred and fiftieth anniversary of the adoption
of the Constitution of the United States under which our judicial system was established;
and we are now asked to consider a bill which, if enacted, would revolutionize that
system. The measure before us today and which will be before us tomorrow and many a day
hence, I gather from the attitude of Senators, should not be entitled "A bill to
reform the judiciary," as it is sometimes called in the public press; it should be
called a bill to centralize the administration of justice and to give the central
establishment at Washington greater control over the local administration of justice than
it has ever had in this democracy.
Do we desire to centralize the administration of justice? Presidents come and
Presidents go. The present occupant of the White House will not always occupy that
distinguished position with the great ability and charm with which he now occupies it.
Some other President will succeed him, and when he does, if this bill should become a law,
it would apply to him as well as to the present occupant of the White House.
So I say, Mr. President, this is not a personal issue; this is not a question of
whether or not we are going to give a certain amount of power to Franklin D. Roosevelt.
The issue before us is whether we are going to give this power to any President who may
occupy the White House, no matter who he may be.
I shall not engage in any invidious comparisons; I shall not mention names; but
there must come to the mind of every Member of this body, as there must come to the minds
of all the citizens of the United States, the names of Presidents in whom they would not
for 3 minutes entrust the power which is proposed to be vested in the President by the
- Ladies and gentlemen, only 9 short days have passed since the President sent to the
Congress recommendations for the reorganization of the Federal judiciary. Yet in that
brief time unfriendly voices have filled the air with lamentations and have vexed our ears
with insensate clamor calculated to divert attention from the merits of his proposal.
System Is Proposed
Remember we are acting upon a system. Let no one forget it. If this measure should
be enacted into law this generation may pass and the next generation will be operating
under the system proposed, which would mark a revolutionary change from the system which
has been handed down to us by the constitutional fathers.
Let us consider the bill. What proponent has yet stood upon this floor and explained
the first section of the proposed substitute? Was it explained by the sponsors of the
bill? Did the eminent chairman of the Judiciary Committee of the Senate of the United
States, the Senator from Arizona (Mr. Ashurst), whose name is attached to this measure,
explain the bill? Did the eminent Senator from Kentucky (Mr. Logan), whose name is
attached to this measure, rise in his place to explain its purport and effect? He spoke
not a single word of that character. Did the Senator from New Mexico (Mr. Hatch), who
lends his name to it, give any explanation of the measure? Not a word or a syllable. And
when those of us who are opposed to the measure undertake to discuss it we are told that
we are filibusterers and are preventing the transaction of the public business.
What business can be more important, Senators of the United States, than the
establishment of the judicial system under which you, your children, and your children's
children will be governed so long as this measure remains upon the Statute books, if it is
passed? Good Presidents come and good Presidents go, and bad Presidents come and bad
Presidents go, and the power that is proposed to be vested by this bill in any occupant of
the White House could be used by a man, if he were so minded, to wreck every vestige of
human liberty under the Stars and Stripes. Let us consider it.
When the original bill was proposed it provided that in the instance of each member
of the judiciary who had attained the age of 70 years and had served for 10 years and
within 6 months had not retired or resigned, the President should appoint another Justice.
It was mandatory. He had no discretion about it at all. The solemn duty was laid
upon him by the terms of the bill to send the nomination to the Senate of the United
States for every man on the bench of the given age and service. As it was written it would
probably have resulted in the immediate appointment of six Justices.
The resentment of the country to the plan was so sweeping and so strong that it was
abandoned, or at least we are told it was abandoned, and here as a substitute we have a
bill which, instead of saying that the President "shall" appoint, says he
"may" appoint. The President now has the discretion to appoint an additional
Justice when a sitting Justice reaches the age of 75 years. Why the discretion? Is the
President to be permitted to say, "In my judgment new blood is not necessary now. It
is true these men are 75 years of age. It is true that there ought to be new blood; but I
am satisfied. I shall make no appointments."
Understand, Mr. President, I am speaking in an impersonal manner. I am not speaking
of the present occupant of the I White House. I am speaking of any occupant of the White
House. If the power is discretionary then it follows as the night follows the day that the
occupant of the White House at some future time, if not at this time, may say, "I am
satisfied with the decisions of Justice A, who is 75 years of age, and I shall not send a
Why the difference between "shall" and "may"? When it was
pointed out on the first day of the debate, the Senator from New Mexico (Mr. Hatch)
immediately announced his belief that the appointment should be mandatory, and I
understand now from the newspapers that the Senator from Kentucky (Mr. Logan) says the
same thing. How does it happen that, after the lapse of all these months, the proponents
of the substitute come upon the floor not knowing exactly what the bill proposes? Who is
the legislative draftsman who substituted "may" for "shall"? It was
not the chairman of the Judiciary Committee (Mr. Ashurst). It was not the Senator from New
Mexico (Mr. Hatch). It was not the Senator from Kentucky (Mr. Logan). It was not the
Senator from Arkansas (Mr. Robinson) who proposed the substitute. Who substituted
"may" for "shall"?
The Accumulation of Appointments
That is not all. The new bill provides that:
What is the explanation for that limitation? Obviously if new blood is necessary, if
age be a crime, if, when Justices reach the age of 75 they are no longer fit to sit upon
the bench, why should they not be removed and why should there be only one substitute
Justice when perhaps there may be four or five who have reached the alleged age of
senility? If the rule is good for one it is good for all.
Oh, but this limitation was put in for the purpose of preventing judgments of the
Court from being influenced by the appointments. How simple-minded we are all supposed to
be! . . .
Mr. President, we have here a substitute which provides, first, for concentration of
power by giving the appointing authority wholly new powers in the selection of Justices of
the Supreme Court in the manner I have described; for concentration of power in the
transfer of judges, both circuit and district, through all parts of the country; for
additional concentration of power through the operation of the newly established office of
proctor; and, finally the fourth phase of concentration permission to the
United States Government to intervene in every case in which the constitutionality of a
law is drawn in question, and to appeal these cases, regardless of the desires or will of
Does this consolidation have any significance for the people of the United States? I
think it cannot be denied that it does. It has a tremendous significance, a significance
which I venture to say is not realized by many persons in the United States. Perhaps not
many in Congress or in the administration realize the great danger that confronts them....
There is no Member of this body who does not know that the great glory of the
American judicial system is the independence of the courts. The independent judiciary was
the greatest advance in the history of government, and it has been one of our great prides
that it has been protected in the United States, and that it is the ideal of our people.
- Not more than one appointment of an additional Justice as herein authorized shall be
made in any calendar year.
Independent Judiciary Essential
Mr. President, I suppose there is no great statesman of our country who has not at
one time or another declared his belief in the independence of the courts. In the same
month in which the Declaration of Independence was signed, Thomas Jefferson wrote a letter
to the distinguished George Wythe, of Virginia, from which I wish to read an extract. It
was dated July 1776 and reads:
Every law student who remembers his Blackstone remembers the lectures of that
distinguished British jurist and his pronouncement upon this subject. I quote from
Blackstone's Commentaries, volume 1, chapter 7, page 268:
- The dignity and stability of government in all its branches, the morals of the people,
and every blessing of society, depends so much upon an upright and skillful administration
of justice that the judicial power ought to be distinct from both the legislature and
executive, and independent upon both, that so it may be a check upon both, as both should
be checks upon that. The judges, therefore, should always be men of learning and
experience in the laws, of exemplary morals, great patience, calmness, and attention;
their minds should not be distracted with jarring interests: they should not be dependent
upon any man or body of men. To these ends they should hold estates for life in their
offices, or, in other words, their commissions should be during good behavior, and their
salaries ascertained and established by law.
For misbehavior, the grand inquest of the
colony, the house of representatives, should impeach them before the Governor and council,
when they should have time and opportunity to make their defense; but if convicted, should
be removed from their offices and subjected to such other punishment as shall be thought
The object of the creation of the independent judiciary and I could quote at
length from the distinguished statesmen of the past was to preserve the individual
citizen from the power of the Government. That is the purpose of the independent
judiciary, to make the judges free of the executive arm so that there may be no danger of
a miscarriage, so that there may be no danger that the executive arm of the Government may
impose its will in decision of cases. But now we have a bill before us which tears this
principle down and tends to make the judiciary the agent of the Government. Do you wonder
I call it revolutionary?
- In this distinct and separate existence of the judicial power in a peculiar body of men,
nominated indeed, but not removable at pleasure, by the crown, consists one main
preservative of the public liberty; which cannot subsist long in any state unless the
administration of common justice be in some degree separated from the legislative and also
from the executive power. Were it joined with the legislative, the life, liberty, and
property of the subject would be in the hands of arbitrary judges, whose decisions would
be then regulated only by their own opinions, and not by any fundamental principles of
law; which, though legislators may depart from, yet judges are bound to observe. Were it
joined with the executive, this union might soon be an overbalance for the legislative.
For which reason, by the statute of 16 Car. I., c. 10, which abolished the court of star
chamber, effectual care is taken to remove all judicial power out of the hands of the
King's privy council, who, as then was evident from recent instances, might soon be
inclined to pronounce that for law which was most agreeable to the prince or his officers.
Nothing, therefore, is more to be avoided, in a free constitution, than uniting the
provinces of a judge and a minister of state....