De Senectute

Behind their walnut bench in the square inner chamber of their great marble temple, the nine Justices of the Supreme Court of the U. S. looked down upon an attorney arguing. Had a New Jersey school board impaired the obligation of contracts in reducing the salaries of school teachers who had fixed tenures of office? Through the chamber's marble columns, Court Clerk Charles Elmore Cropley--he who held the cellophane-covered Bible on which Franklin Roosevelt renewed his oath of office (TIME, Feb. 1)--appeared and laid some mimeographed sheets before Chief Justice Charles Evans Hughes. Presently a blond page boy popped up and laid similar sheets before the other Justices.

From the floor below it was impossible to see whether several of the Justices were reading the sheets or consulting texts, as they often do. Eighty-year-old Justice Brandeis seemed to be studying something intently, occasionally scratching his ear and smiling faintly. Next to him square-headed Justice Butler, 70, chuckled over something to Justice Roberts, 61, the Court's baby. At the other end of the bench Justice Cardozo. 66, was reading intently. Justice Sutherland. 74, stroked his Vandyke, also read. Chief Justice Hughes, 74, spoke quietly to Justice Van Devanter beside him and Mr. Van Devanter, 77, smiled dourly. But the argument went on to its conclusion, the Justices interrupting occasionally to make inquiries. Finally they rose and filed out in their customary dignity without either the attorneys or the courtroom audience realizing that they had witnessed the reception by the Supreme Court of an historic document: Franklin Roosevelt's message to Congress recommending a reorganization of the judicial branch of the Government--an oil-smooth state paper that packed terrific political punch.

The Punch in the document, however, was not equal to the punch in Franklin Roosevelt's voice as he read his message to a press conference an hour before it was delivered to Congress and the Supreme Court. He beamed at newshawks with evident exuberance. He fairly smacked his lips over his adroit phrasing, revealing to the Press by intonation and ironic interjection his exhilaration over the most daring stroke he had yet attempted: his long-awaited blow to break the deadlock between the New Deal and the Supreme Court.

He was feeling far better than at that momentous press conference two years ago, when, after the Supreme Court invalidated NRA, he lashed out hurt and angry at "horse-&-buggy" interpretation of the Constitution. Those comments were hurled back at him during last year's campaign. In his message to Congress last month he sidetracked that issue, declaring:

"The vital need is not an alteration of our fundamental law. . . . With a better understanding . . . of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony."

New Deal followers in Congress had since election been cogitating Constitutional amendments to give the Federal Government power to regulate industry, labor and agriculture. They had been pondering Acts to force the licensing of corporations engaged in interstate commerce, to limit the jurisdiction of the Supreme Court, to require more than a mere majority of the Court to declare a law unconstitutional, etc., etc. Now the President was striding forward to take over the whole show, as usual.

Righteous Argument As Franklin Roosevelt unfolded his plan, sweet reasonableness was its disarming keynote. He proposed no alteration of the Constitution, no limitation of the powers of the courts. He unveiled a foundation of ample precedent, buttressed by arguments often made in the past by eminent jurists, for improvement of the judicial system. Only a month ago he had proposed a plan to reorganize the executive branch (TIME, Jan. 25). Now he merely proposed to rejuvenate the judicial branch.

Congress had often altered the number of judges on the Federal bench. In fact it had first established the Supreme Court with six members in 1789, increased it to seven in 1807, to nine in 1837, to ten in 1863, decreased it to eight in 1866, increased it to nine in 1869. Franklin Roosevelt produced a letter from his Attorney General attesting that each Federal judge now has to handle nearly half again as many cases as in 1913, that congestion and delay result. His reasoning was impeccably high-minded as he developed it for the newshawks, but as he continued he let his political purpose flicker through.

Speaking of the early history of the Supreme Court he mentioned that for over a century its Justices had to ride circuit. That, he interjected, meant actually riding on horseback, so it might be called the pre-horse-&-buggy era. Newshawks guffawed. He continued reading:

"Delay in any court results in injustice. It makes lawsuits a luxury available only to the few who can afford them or who have property interests to protect which are sufficiently large to repay the cost. . . . The Supreme Court is laboring under a heavy burden. Its difficulties in this respect were superficially lightened some years ago by authorizing the Court, in its discretion, to refuse to hear appeals in many classes of cases. This discretion was so freely exercised that in the last fiscal year, although 867 petitions for review were presented to the Supreme Court, it declined to hear 717 cases. . . .

"Many of the refusals were doubtless warranted. But can it be said that full justice is achieved when a Court is forced by the sheer necessity of keeping up with its business to decline, without even an explanation, to hear 87% of the cases presented to it by private litigants? . . .

"A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm judges--a subject of delicacy and yet one which requires frank discussion."

Another guffaw followed this sentence, which the President read with ripe irony. He paused, grinned, then resumed: "In the Federal courts there are in all 237 life tenure permanent judgeships. Twenty-five of them are now held by judges over 70 years of age and eligible to leave the bench on full pay. Originally no pension or retirement allowance was provided by the Congress. ... In exceptional cases, of course, judges, like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities. 'They seem to be tenacious of the appearance of adequacy.' "

Franklin Roosevelt paused again to tell his audience that this sentence was a quotation from an eminent Justice. Who? He archly declined to say.*

"To meet the situation, in 1913, 1914, 1915 and 1916, the Attorney Generals then in office recommended to the Congress that when a district judge or a circuit judge failed to retire at the age of 70, an additional judge be appointed in order that the affairs of the court might be promptly and adequately discharged."

He would put the press out of its suspense, said the President, pausing once more. The Attorney Generals who made that recommendation were named Thomas W. Gregory and James Clark McReynolds, now 75 and a member of the Court. Loudest laugh of all shook the executive office and the President heartily joined.

"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. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future. . . ."

Modest proposals. On the basis of these old and eminently reasonable arguments, the President made his proposals: Let the Chief Justice have power to assign temporarily lower court justices from one court to another when dockets grow crowded. Let the Supreme Court have a new officer, a $10,000-a-year "proctor" to watch for congestion in the lower courts and recommend transfers of judges and other steps to relieve it. Let any decision on the constitutionality of a law be appealed directly to the Supreme Court, there to take precedence over other cases so that the constitutionality of laws be not long in doubt.

These recommendations would not have stirred any one deeply, least of all the President. The kernel of his message came when he read, "I therefore earnestly recommend . . . the appointment of additional judges in all Federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or resign." This meant, according to the draft of the bill which he sent with his message, that he would be empowered to appoint not more than 50 new judges to duplicate those who are now 70 and have been ten years on the bench. Not stated by the President to the press, and in the draft bill masterfully underemphasized, was the specific, final, crucial point of the entire performance: a proposal to swell the Supreme Court--should septuagenarians decline to retire--from nine to 15 members, an increase of two Justices larger than the confirmed anti-New Deal element of the present Court.

"These proposals do not raise any issue of Constitutional law. They do not suggest any form of compulsory retirement for incumbent judges. . . ."

Nervous shock. As always in one of his major acts--and this was his biggest yet--Franklin Roosevelt had taken this country completely by surprise. Flabbergasted Congressmen stumbled hastily into the legislative chambers to hear the message read as rumors of its contents flew. News-tickers flashed it to the floors of stock exchanges and stockmarket prices took a swift tumble. It spread in banner headlines across every newspaper. Presently it appeared that the U. S. was not .only surprised but also rather shocked. Only the most rabid New Deal newspapers openly applauded. The alarm of the independent press that ordinarily supports the Administration was typified by the New York Times, which sternly said: "Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve." Said a Scripps-Howard editorial writer: "Though not as crude as President Grant's coup adding two members to the high bench to win majority approval of his legal tender law, Mr. Roosevelt's proposal, in its political sense, is designed to achieve the same end. And because that purpose sticks out like a sore thumb, the President must accept much of the responsibility for returning the controversy to the realm of emotion."

Numbers. As obviously as the President's message was an argument for a change in the judiciary on the simple grounds of good government, his major proposal had an ulterior motive. It was patently contrived to let him override the Supreme Court as now constituted by adding or replacing Justices to support the legal contentions of the New Deal. Conservatives Butler, 70, Sutherland and Hughes, 74, McReynolds, 75, Van Devanter, 77, are all of retirement age. Of the Liberals, only Justice Brandeis, 80, would be affected.

Moreover, although there is congestion in the lower courts--the southern district of New York, for example, is some 18 months behind in its work both in law and equity cases--the Supreme Court for several years has had only about 100 cases left on its calendar at the end of each term. And most qualified opinion agrees that enlarging the Supreme Court would brake rather than accelerate it. The late Justice Story remarked: "If there were twelve Justices we should do no business at all." Franklin Roosevelt's great friend Felix Frankfurter says in the Encyclopedia of Social Sciences, "There is no magic in the number nine, but there are limits to effective judicial action. . . . Experience is conclusive that to enlarge the size of the Supreme Court would be self-defeating."

Of the 25 judges aged 70 or more whom the President might duplicate with younger men, there are, after deducting six in the Supreme Court, only 19 in the more crowded lower courts. If a shortage of judicial manpower weighed on the President's mind, it was strange that he had not filled the eight vacancies in the lower courts, which have existed from several months to over a year.

Historic Football. Three decades of comparative calm have surrounded the Supreme Court with an air of ancient virginity which last week made its proposed alteration seem violent indeed. But when loyal Majority Leader Robinson of the Senate called his chief's plan "in no sense a violent innovation," he spoke truly in history's light. In the great game of power between sections, classes, parties and individuals which is U. S. history, the Court has .more than once been a political football, and Franklin Roosevelt is by no means the first politician or President to give it a boot.

The first Court squeeze-play was worked by Federalists, spiritual forebears of present-day Republicans. Having lost the executive and legislative branches of the Government to Jefferson and his Demo-crats (then called Republicans) in the elections of 1800-01, Second President John Adams and his lame-duck Congress whipped through a "midnight judges act" designed to keep their party in control of the judicial branch for many a year to come. In addition to creating 16 new life-term circuit judgeships, which President-reject Adams did not finish filling with Federalists until midnight of March 3, the Act forestalled a Jeffersonian appointment to the Supreme Court by reducing its membership from six to five. President-elect Jefferson was also thwarted when Adams secured the resignation of ailing Chief Justice Oliver Ellsworth and rushed in his Secretary of State, John Marshall. The new Jeffersonian Congress promptly repealed the Federalist act, pushed the Supreme Court out of the way by the simple expedient of suspending its sessions for more than a year.

When the Court reassembled in 1803, the piddling suit of a man named Marbury, to secure a commission as District of Columbia justice of the peace which Secretary of State Madison refused to deliver to him, gave Chief Justice Marshall a chance to set his Federalist stamp on U. S. history. For the first time he asserted the right of the Supreme Court to nullify Acts of Congress as "unconstitutional." Thomas Jefferson, Marshall's distant cousin and lifelong political foe, never acknowledged that claim. If it were correct, he declared in the first great anti-Supreme Court blast, "then indeed is our Constitution a complete felo-de-se [suicide]."

Years later, still chafing at Federalist stumbling-blocks laid by the Court, ex-President Jefferson proposed a Constitutional amendment limiting the terms of Justices to six years. His Congressional followers wanted quicker action. Between 1821 and 1825 bills were introduced to curb the Court's power in Constitutional cases by giving the Senate appellate jurisdiction over it, by requiring a vote of five out of seven Justices, by "packing" it with three new Justices.

In 1830 President Andrew Jackson, who resented the Court as hotly as Thomas Jefferson had and Franklin Roosevelt does, struck at the foundation of its power by urging repeal of a crucial section of the Judiciary Act of 1789. Unsuccessful, and only partly mollified as death made vacancies for Democrats, the hard-bitten old Indian fighter crystallized his view of the Supreme Court in a traditional comment on the decision which first gave Indians their legal status as government wards, "John Marshall has made his decision," Jackson roared, "Now let him enforce it!"

By 1857 Democratic appointees ruled the Court and it was the turn of Whig-Republicans to chafe and roar. When Democratic Chief Justice Roger B. Taney, onetime slave owner, handed down his Dred Scott decision preserving Western territories to slavery despite the will of Congress, a rising Republican named Abraham Lincoln went up & down the land denouncing it, demanding that the President and Congress reverse it, calling for appointment of new, right-thinking Justices. As President, Lincoln carried his feud to the point of ordering an Army fort commander to ignore a writ of habeas corpus issued by Chief Justice Taney.

Except for the Federalist squeeze of 1800, all changes in the Court's size up to the end of the Civil War were honestly motivated by the growth of Court business. But in 1866 a Congress bent on punishing the South cut Court membership to eight solely to keep merciful President Andrew Johnson from appointing new Justices who might help to nullify the vengeful Reconstruction Acts. Two years later, with Congress still fearful of the surviving Court, the recurrent plan to curb it by requiring a two-thirds decision against Congressional measures got past the House, but died in the Senate.

In 1870 a Republican Congress and President settled the Court at its present size under circumstances highly suggestive of packing. Up for Court decision were the Legal Tender Acts involving the issue of Civil War greenbacks. Resignation had made one vacancy on the Court: Congress had year before created another. On the very day the Court handed down a 4-to-3 decision against the greenbacks, President Grant filled the two vacancies. On rehearing, the greenbacks were upheld 5-10-4.

With that decision, the Court hit bot tom in popular opinion, but soon commenced its steady rise to awesome heights. Until last week the nearest thing to a suggestion of Presidential tinkering was in 1912 when, attempting a comeback, Franklin Roosevelt's fifth cousin flirted publicly with the idea of recall of unpopular judges, actually plumped for re-call of judicial decisions in his Progressive platform. Wrote Felix Frankfurter in 1934: "Certainly neither the Presidency nor the Congress has better withstood the fluctuating winds of popular opinion than the Supreme Court. Despite intermittent popular movements against it, the Court is more securely lodged in the confidence of the people than the other two branches of the Government."

The Line-Up. When copies of the President's message, with the proposed Judiciary-Reform Bill attached, were distributed in the House, opportunistic little Representative Maury Maverick of San Antonio, Tex. quickly tore off the mimeographed draft of the bill, signed his name to it and dropped it in the hopper. So doing he stole a march on other ardent New Dealers in Congress, most of whom were immensely pleased by the President's move. Newshawks who immediately made surveys of Congressional sentiment agreed that the bill would be passed without serious difficulty. Save for routine Republican objections, little criticism was voiced at the Capitol in the first 24 hours following the shock of its reception. Senator Robinson promised that it would receive "favorable consideration."

But a startling amount of lukewarmness quickly developed. Senator Norris who, in the contest between New Deal and Supreme Court, has always been on the New Deal's side, frankly declared, "I doubt the wisdom of the remedy suggested." Senator Ashurst. chairman of the Senate Judiciary Committee, hemmed & hawed and looked up the late Chief Justice Taft's views before saying he would sponsor the bill in the Senate. Chairman Hatton Summers of the House Judiciary Committee declared merely, ''We'll take their baby out and look at it."

Senate support of the bill was not strengthened by the President's criticism of oldsters, nor by the fact that Senators like Robinson of Arkansas and Wagner of New York, who have been considered for the first vacancies on the Supreme Court, will not be eligible for any of the new posts proposed.* Senator Van Nuys of Indiana, a member of the Judiciary Committee, announced that he would insist on the Justices of the Supreme Court being called to give their views on the bill. Promptly several other members backed him up.

Gradually the opposition to the President's proposal began to take form, the Republicans generally leaving the leadership to Democrats in order not to make it a partisan issue. Democratic Senator Burke of Nebraska described the bill as ''the most direct attack on the independence of our judiciary which the country has seen." Democratic Senator King of Utah declared, 'T most certainly do not approve. . . ." Democratic Senator Glass, at home in Lynchburg. Va., snorted at newshawks, "I thought it was generally understood that I was opposed to any tinkering with the Supreme Court."

Nor was there any doubt on which side the stentorian logic of Senator Borah would be heard. He said the President's message was too important to comment upon ex tempore, but four days before it was delivered the Independent from Idaho had put himself emphatically on record as opposed to letting the New Deal overrule the Supreme Court except by a Constitutional amendment: "If the people desire that the Federal Government shall have control over their local affairs it is for the people to say so . . . in the manner pointed out by the Constitution."

With the huge Democratic majorities in Congress, all odds were that the President would get what he wanted. But with a big block of Democrats squirming uncomfortably on the fence, and the calibre of the leaders who openly opposed the bill, it became certain that there would be a good squabble in the House, a battle royal in the Senate before Franklin Roosevelt could have his way.

*The titillated press soon found out, of course, that Charles Evans Hughes had said it in a lecture delivered at Columbia University in 1930. Other quotations from that lecture: "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. . . .

"Men who take good care of themselves and live the protected and regular life of a judge are more likely now to be fit at 70 than were their predecessors at 65 under the conditions of 50 years ago. . . . Compulsory retirement at 75 could more easily be defended. "The community has no more valuable asset than an experienced judge. It takes a new judge a long time to become completely master of the material of his court. Contrary to general opinion, the work of the court tends to keep a man keen-witted and earnest."

*The Constitution says, "No Senator or Representative shall during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time."

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