New Deal Legislation

Judicial Reorganization Plan

Senate Judiciary Committee Adverse Report

June 7, 1937

The Committee on the Judiciary, to whom was referred the bill to reorganize the judicial branch of the government, after full consideration, having unanimously amended the measure, hereby report the bill adversely with the recommendation that it do not pass. . . .

The Argument

The committee recommends that the measure be rejected for the following primary reasons:

I. The bill does not accomplish any one of the objectives for which it was originally offered.

II. It applies force to the judiciary and in its initial and ultimate effect would undermine the independence of the courts.

III. It violates all precedents in the history of our government and would in itself be a dangerous precedent for the future.

IV. The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people's consent or approval; it undermines the protection our constitution system gives to minorities and is subversive of the rights of individuals.

V. It tends to centralize the Federal district judiciary by the power of assigning judges from one district to another at will.

VI. It tends to expand political control over the judicial department by adding judges from one district to another at will.

Objectives As Originally Stated

As offered to the Congress, this bill was designed to effectuate only three objectives, described as follows in the President's message:

1. To increase the personnel of the Federal courts "so that cases may be promptly decided in the first instance, and may be given adequate and prompt hearing on all appeals”;

2. To "invigorate all the courts by the permanent infusion of new blood”;

3. To "grant to the Supreme Court further power and responsibility in maintaining the efficiency of the entire Federal judiciary.”

The third of these purposes was to be accomplished by the provisions creating the office of the Proctor and dealing with the assignment of judges to courts other than those to which commissioned.

The first two objectives were to be attained by the provisions authorizing the appointment of not to exceed 50 additional judges when sitting judges of retirement age, as defined in the bill, failed to retire or resign.  How totally inadequate the measure is to achieve either of the named objectives, the most cursory examination of the facts reveals.

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Question of Age Not Solved

The next question is to determine to what extent "the persistent infusion of new blood” may be expected from this bill.

It will be observed that the bill before us does not and cannot compel the retirement of any judge, whether on the Supreme Court or any other court, when he becomes 70 years of age.  It will be remembered that the mere attainment of three score and ten by a particular judge does not, under this bill require the appointment of another.  The man on the bench may be 80 years of age, but this bill will not authorize the President to appoint a new judge to sit beside him unless he has served as a judge for 10 years.  In other words, age itself is not penalized; the penalty falls only when age is attended with experience.

No one should overlook the fact that under this bill the President, whoever he may be and whether or not he believes in the constant infusion of young blood in the courts, may nominate a man 69 years and 11 months of age to the Supreme Court, or to any court, and if confirmed, such nominee, if he never had served as a judge, would continue to sit upon the bench unmolested by this law until he had attained the ripe age of 79 years and 11 months.

We are told that "modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the government and in private business.”  Does this bill provide for such?  The answer is obviously no.  As has been just demonstrated, the introduction of old and inexperienced blood into the courts is not prevented by this bill.

More than that, the measure, by its own terms, makes impossible the "constant” or "persistent” infusion of new blood.  It is to be observed that the word is "new,” not "young.” 

The Supreme Court may not be expanded to more than 15 members.  No more than two additional members may be appointed to any circuit court of appeals, to the Court of Claims, to the Court of Customs and Patent Appeals, or to the Customs Court, and the number of judges now serving in any district or group of districts may not be more than doubled.  There is, therefore, a specific limitation of appointment regardless of age.  That is to say, this bill, ostensibly designed to provide for the infusion of new blood, sets up insuperable obstacles to the "constant” or "persistent” operation of that principle.

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It thus appears that the bill before us does not with certainty provide for increasing the personnel of the Federal judiciary, does not remedy the law's delay, does not serve the interest of the "poorer litigant” and does not provide for the "constant” or "persistent infusion of new blood” into the judiciary.  What, then, does it do?

The Bill Applies Force to the Judiciary

The answer is clear.  It applies force to the judiciary.  It is an attempt to impose upon the courts a course of action, a line of decision which, without that force, without that imposition, the judiciary might not adopt.

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Those of us, who hold office in this government, however humble or exalted it may be, are creatures of the Constitution.  To it we owe all the power and authority we possess.  Outside of it we have none.  We are bound by it in every official act.

We know that this instrument, without which we would not be able to call ourselves presidents, judges, or legislators, was carefully planned and deliberately framed to establish three coordinate branches of government, every one of them to be independent of the others.  For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people's servants and no one branch could overawe or subjugate the others.  That is the American system.  It is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial.

That judges should hold office during good behavior is the prescription.  It is founded upon historic experience of the utmost significance.  Compensation at stated times, which compensation was not to be diminished during their tenure, was also ordained.  Those comprehensible terms were the outgrowths of experience which was deep-seated….This judicial system is the priceless heritage of every American.

By this bill another and wholly different cause is proposed for the intervention of executive influence, namely, age.  Age and behavior have no connection; they are unrelated subjects.  By this bill, judges who have reached 70 years of age may remain on the bench and have their judgment augmented if they agree with the new appointee, or vetoed if they disagree.  This is far from the independence intended for the courts by the framers of the Constitution.  This is an unwarranted influence accorded the appointing agency, contrary to the spirit of the Constitution.  The bill sets up a plan which has as its stability the changing will or inclination of an agency not a part of the judicial system.  Constitutionally, the bill can have no sanction.  The effect of the bill, as stated by the Attorney General to the committee, and indeed by the President in both his message and speech, is in violation of the organic law.

Object of Plan Acknowledged

No amount of sophistry can cover up this fact.  The effect of this bill is not to provide for an increase in the number of Justices composing the Supreme Court.  The effect is to provide a forced retirement, or, failing in this, to take from the Justices affected a free exercise of their independent judgment.

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Let us, for the purpose of the argument, grant that the Court has been wrong, wrong not only in that it has rendered mistaken opinions, but wrong in the far more serious sense that it has substituted its will for the congressional will in the matter of legislation.  May we nevertheless safely punish the Court?

Today it may be the Court which is charged with forgetting its constitutional duties.  Tomorrow it may be the Congress.  The next day it may be the executive.  If we yield to temptation now to lay the lash upon the Court, we are only teaching others how to apply it to ourselves and to the people when the occasion seems to warrant.  Manifestly, if we may force the hand of the Court to secure our interpretation of the Constitution, then some succeeding Congress may repeat the process to secure another and a different interpretation and one which may not sound so pleasant in our ears as that for which we now contend.

There is a remedy for usurpation or other judicial wrongdoing.  If this bill be supported by the toilers of this country upon the ground that they want a Court which will sustain legislation limiting hours and providing minimum wages, they must remember that the procedure employed in the bill could be used in another administration to lengthen hours and to decrease wages.  If farmers want agricultural relief and favor this bill upon the ground that it gives them a Court which will sustain legislation in their favor, they must remember that the procedure employed might some day be used to derive them of every vestige of a farm relief.

When members of the Court usurp legislative powers or attempt to exercise political power, they lay themselves open to the charge of having lapsed from that "good behavior” which determines the period of their official life.  But, if you say, the process of impeachment is difficult and uncertain, the answer is, the people made it so when they framed the Constitution.  It is not for us, the servants of the people, the instruments of the Constitution, to find a more easy way to do that which our masters made difficult.

But, if the fault of the judges is not so grievous as to warrant impeachment, if their offense is merely that they have grown old, and we feel, therefore, that there should be a "constant infusion of new blood,” then obviously the way to achieve that result is by constitutional amendment fixing definite terms for the members of the judiciary or making mandatory their retirement at a given age.  Such a provision would indeed provide for the constant infusion of new blood, not only now but at all times in the future.  The plan before us is but a temporary expedient which operates once and then never again, leaving the Court as permanently expanded to become once more a court of old men, gradually year by year falling behind the times.

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A Measure Without Precedent

This bill is an invasion of judicial power such as has never before been attempted in this country.  It is true that in the closing days of the administration of John Adams, a bill was passed creating 16 new circuit judges while reducing by one the number of places on the Supreme Court.  It was charged that this was a bill to use the judiciary for a political purpose by providing official positions for members of a defeated party.  The repeal of that law was the first task of the Jefferson Administration.

Neither the original act nor the repealer was an attempt to change the course of judicial decision.  And never in the history of the country has there been such an act.  The present bill comes to us, therefore, wholly without precedent.

It is true that the size of the Supreme Court has been changed from time to time, but in every instance after the Adams Administration, save one, the changes were made for purely administrative purposes in aid of the Court, not to control it.

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A Precedent of Loyalty to the Constitution

Shall we now, after 150 years of loyalty to the constitutional ideal of an untrammeled judiciary, duty bound to protect the constitutional rights of the humblest citizen even against the government itself, create the vicious precedent which must necessarily undermine our system?  The only argument for the increase, which survives analysis, is that Congress should enlarge the Court so as to make the policies of this administration effective.

We are told that a reactionary oligarchy defies the will of the majority, that this is a bill to "unpack” the Court and give effect to the desires of the majority; that is to say, a bill to increase the number of Justices for the express purpose of neutralizing the views of some of the present members.  In justification we are told, but without authority, by those who would rationalize this program, that Congress was given the power to determine the size of the Court so that the legislative branch would be able to impose its will upon the judiciary.  This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court.  When such a principle is adopted, our constitutional system is overthrown!

This, then, is the dangerous precedent we are asked to establish.  When proponents of the bill assert, as they have done, that Congress in the past has altered the number of Justices upon the Supreme Court and that this is reason enough for our doing it now, they show how important precedents are and prove that we should now refrain from any action that would seem to establish one which could be followed hereafter whenever a Congress and an executive should become dissatisfied with the decisions of the Supreme Court.

This is the first time in the history of our country that a proposal to alter the decisions of the court by enlarging its personnel has been so boldly made.  Let us meet it.  Let us now set a salutary precedent that will never be violated.  Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact.  We are not the judges of the judges.  We are not above the Constitution.

Even if every charge brought against the so-called "reactionary” members of this Court be true, it is far better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members.  Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the independent American judiciary from attack as long as this government stands….True it is, that courts like Congresses, should take account of the advancing strides of civilization.  True it is that the law, being a progressive science, must be pronounced progressively and liberally; but the milestones of liberal progress are made to be noted and counted with caution rather than merely to be encountered and passed.  Progress is not a mad mob march; rather, it is a steady, invincible stride.

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If, under the "hydraulic pressure” of our present need for economic justice, we destroy the system under which our people have progressed to a higher degree of justice and prosperity than that ever enjoyed by any other people in all the history of the human race, then we shall destroy not only all opportunity for further advance but everything we have thus far achieved….Even if the case were far worse than it is alleged to be, it would still be no argument in favor of this bill to say that the courts and some judges have abused their power.  The courts are not perfect, nor are the judges.  The Congress is not perfect, nor are Senators and Representatives.  The executive is not perfect.  These branches of government and the office under them are filled by human beings who for the most part strive to live up to the dignity and idealism of a system that was designed to achieve the greatest possible measure of justice and freedom for all the people.  We shall destroy the system when we reduce it to the imperfect standards of the men who operate it.  We shall strengthen it and ourselves, we shall make justice and liberty for all men more certain when, by patience and self-restraint, we maintain it on the high plane on which it was conceived.

Inconvenience and even delay in the enactment of legislation is not a heavy price to pay for our system.  Constitutional democracy moves forward with certainty rather than with speed.  The safety and the permanence of the progressive march of our civilization are far more important to us and to those who are to come after us than the enactment now of any particular law.  The Constitution of the United States provides ample opportunity for the expression of popular will to bring about such reforms and changes as the people may deem essential to their present and future welfare.  It is the people's charter of the powers granted those who govern them.

Summary

We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle.

It was presented to the Congress in a most intricate form and for reasons that obscured its real purpose.

It would not banish age from the bench nor abolish divided decisions.

It would not affect the power of any court to hold laws unconstitutional nor withdraw from any judge the authority to issue injunctions.

It would not reduce the expense of litigation nor speed the decision of cases.

It is a proposal without precedent and without justification.

It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights.

It contains the germ of a system of centralized administration of law that would enable an executive so minded to send his judges into every judicial district in the land to sit in judgment on controversies between the government and the citizen.

It points the way to the evasion of the Constitution and established the method whereby the people may be deprived of their right to pass upon all amendments of the fundamental law.

It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretation of the Constitution, a proposal that violates every sacred tradition of American democracy.

Under the form of the Constitution it seeks to do that which is unconstitutional.

Its ultimate operation would be to make this government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the government choose to say it is -- an interpretation to be changed with each change of administration.

It is a measure, which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.