+(,121/,1( Citation: J. R. Saylor, Court Packing Prior to FDR, 20 Baylor L. Rev. 147 (1968) Provided by: Available Through: Pence Law Library, Washington College of Law Content downloaded/printed from HeinOnline Thu Jun 28 15:06:17 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device BAYLOR LAW REVIEW SPRING, 1968 VOLUME XX "COURT NUMBER 2 PACKING" PRIOR TO FDR DR. J. R. SAYLOR* The much publicized conflict in 1937 between President Franklin D. Roosevelt and the Supreme Court of the United States over the President's "court-packing" bill is not without precedent. From Washington, who appointed no fewer than 12 justices, through Hoover, every President with but two exceptions has been confronted with one or more Supreme Court vacancies. 1 "Packing" the Supreme Court is not new, for every time a President nominates a person to the Bench and the nomination is confirmed by the Senate, the President indulges in "court packing." That process has been going on continuously since the first appointments to the Bench of Federalist judges by President Washington. We have a government of laws interpreted and applied by men, and it makes a great deal of difference who these men are when a liberal or a conservative interpretation of the Constitution is desired by a President. Many conservative thinkers would have the people believe that Supreme Court ap*Professor of Government, East Texas State University. B.A., S. W. Mo. State College; M.A., S.M.U.; Ph.D., University of Texas. IIrving Dilliard, "Mr. Roosevelt and the Supreme Court; the Observations of a Citizen," Survey Graphic, February, 1937, Volume 26, p. 94. William Henry Harrison and Zachary Taylor made no appointments to the Bench, but Harrison lived only a month after taking office and Taylor lived only a year and four months after his inauguration. However, the Vice-Presidents who filled out their terms, Tyler and Fillmore, each had an opportunity to make nominations to the Supreme Court.-Loc. cit. BAYLOR LAW REVIEW [Vol. XX pointments are "made in a vacuum," that is, that the President considers only the integrity and ability of the would be judge and does not concern himself with his political views. However, very few, if any, appointments have been made without the President's considering the social, political, and economic views of the judge. 2 Mr. Ernest Sutherland Bates said: It is pleasant theory still held by the naive that the president of the United States in making his appoitnments to the Supreme Court is governed primarily by considerations of merit. That unfortunately has never been the casi in the past and is not likely to be the case in future. The president can hardly be expected to appoint men, however outstanding they may he, whose views on matters of public policy are known to be radically different from his own. He has personal and political obligations, which, being human, he will be tempted to fulfill through appointments to the Court. Besides being president, he is the leader of a political party, and partisan considerations will be borne in mind. So also will be the question of territorial representation. The most that can be said is that with a highminded president merit will be one of the important qualifications for appointment to the Court; with a lowminded president it will not even 3 be one of them. Through the power of appointment of justices, the Presidents of the United States have been primarily responsible for the changing character of the Constitution. Presidents appoint judges, 4 in the main, who will uphold the constitutionality of their policies. 2H. L. Leek, "'Packing' the Court," American Federationist,April, 1937, Volume 44, p. 384. Mr. Irving Brandt, in his book Storm Over the Constitution, said: "In the long run the Court reflects the economic and social views of the presidents who make the appointments, or of the group that rule the presidents. If chief executives are prevailingly friendly to the forces opposing social progress, that hostility will be reflected in the body which decides what the government can or cannot do under the Constitution."-The Bobbs-Merrill Co., Indianapolis, 1936, p. 253. 3 Ernest S. Bates, The Story of the Supreme Court, The Bobbs-Merrill Co., N. Y., 1936, p. 42. Mr. Corwin said that "the Court has been subjected sometimes overtly, more often covertly, to political pressure." Edward S. Corwin, The President:Office and Powers, University Press, N. Y., 1941, p. 293. 4C. Perry Patterson, "The President Over the Judiciary," Brooklyn Law Review, April, 1942, Volume I, p. 181. In the same article Mr. Patterson said: "My thesis is that while the Court is over the Constitution, the President is over the Court .... The constitutional theory of the Presidents who appointed the majority of the Court is, in the main, upheld by the Court. 1968] COURT PACKING History reveals that on seven occasions Congress has enlarged or diminished the size of the Supreme Court by one or two judges. 5 Some of these changes were the result of the attempt of various Presidents to "pack" the Court in order that the policies of the government in power would be upheld as constitutional. Other changes were due to a desire to purge the Court of those justices making decisions objectionable to an incumbent of the White House or to a dominant party majority in Congress. While lack of space does not permit giving a complete story of "court packing" and quarrels between the President and the Court, the following pages relate incidents that are illustrative of the power of the President over the Court. The Judiciary Act of 1789, which provided for the creation of the Supreme Court, made possible the appointment of an entire Bench by one president, Washington. While Washington was considered a high-minded president, he deemed it to be his duty to appoint only Federalists on the Court. 6 While all the justices of the first Supreme Court were men of learning and leadership, they were "intimately affiliated with the Federalist Party, and identified with the propertied class which that party The Court has changed its opinions with the Presidents when there was a real difference in the constitutional views of the Presidents. This has not been accidental. It has occurred because the Presidents by their selection of 5Justices meant to change the opinions of the Court."-Loc. cit. "Remodeling the Supreme Court: The Record Since 1789," United States News, May 17, 1937, p. 6. This article surveys the altering personnel of the Court as follows: (1) The Judiciary Act of 1789 created a Supreme Court consisting of a Chief Justice and five Associate Justices. (2) The Circuit Court Act of 1801 reduced the number of Supreme Court Justices to five, relieved them of the duty of sitting in the Federal Circuit Courts, and established six new Circuit Courts with sixteen separate judges (The Jeffersonian administration did not permit this reduction to go into effect, however). (3) In 1802 the Jeffersonian party repealed the Act of 1801 and reestablished the original number of six Supreme Court Justices. (4) The Congress increased the Court from six to seven in 1807 along with the creation of a new judicial circuit, embracing the States of Kentucky, Tennesse, and Ohio. (5) In 1837, with the creation of two new circuits in the West and Southwest, during Jackson's administration, the number on the Court was increased to nine. (6) In 1863 Congress provided for the appointnient of an additional Associate Justice, raising the total number to ten. (7) In July, 1866, Congress passed a law that President Andrew Johnson should fill no vacancies that might occur on the Court till its personnel had been reduced to eight members. It reached that number a year later with the death of Justice Wayne. (8) In 1869, during Grant's administration, Congress raised the number of Supreme Court Justices to nine. It has remained fixed at that number from then until now.-Loc. cit. 6Bates, op. cit., p. 42. BAYLOR LAW REVIEW [Vol. XX represented. '' 7 The decisions and actions of the Washington Court were adverse to practically every cardinal doctrine of the Anti-Federalists who regarded the Court as a mere annex of the Federalist party. 8 Perhaps the historical situation which most closely paralleled the court crisis of 1937 was that of 1801, when the Federalists were supplanted by the Jeffersonians. 9 Jefferson's assumption of office, in 1801, marked the nation's first political change in party government. After twelve years of continuous power, the Federalists had to turn the controls of government over to the Republicans-later to be known as Democrats. Jefferson's followers looked upon the President and Congress as the real representatives of the people, in fact, as the only representatives The Supreme Court, however, served to act as a stumbling block in the path of "Jeffersonianism."' 10 The "thorn in the flesh" to Jefferson was the passage of the Judiciary Act by the outgoing Federalists on February 13, 1801, for the purpose of securing to themselves control of the federal judiciary. It established sixteen new judgeships and reduced the number of Supreme Court judges to five," by providing that when the next vacancy occurred it should not be filled. President-elect Jefferson considered this feature of the Act as aimed directly at himself and as an intentional diminution of his powers, for one of the justices, Cushing, was an elderly man in bad health and might be expected to resign at any time. To prevent Jefferson from making an appointment to fill a probable vacancy on the Bench was undobutedly an attempt made by the Federalists to 2 keep the Court wholly Federalist.' Immediately after the passage of the Act in 1801 the criticism in the Republican newspapers was widespread and savage. It was stated by many that Mr. Adams laid the foundation of future faction and his own shame. Wilson C. Nicholas wrote to John Breckenridge of Kentucky that "the close of Mr. Adam's Ad7Ibid., p. 47. The members of the first Supreme Court were Chief Justice Jay and Associate Justices Iredell, Wilson, Rutledge, Blair, and Cushing.Loc. cit. sCharles Warren, The Supreme Court in United States History, Little, Brown & Co., Boston, 1922, Volume I, p. 190. 9Leek, op. cit., p. 382. 10Ireton, Jefferson and the Supreme Court, 17 B. U. L. REV. 81 (1937). 11Note 5. supra. 2 1 Warren, op. cit., Volume I, p. 189. 1968] COURT PACKING ministration was marked with all the folly and wickedness that it was ever distinguished for."' 3 Stevens Thomson Mason wrote that "the Judiciary bill has been crammed down our throats, 4 without a word or a letter being suffered to be altered."' Benjamin Austin, a famous Massachusetts Anti-Federalist, wrote, "This extensive machine, moving under the weight of a column of supernumerary Judges, attended with the immense expense of their establishments, it is feared would ultimately ,reduce the people to the utmost state of irritation.' u5 The fears of the Anti-Federalists were realized when President Adams, before he went out of office, made his famous "midnight" ap16 pointments of Federalists to various judicial positions. Regarding the Judicial Act of 1801 as purely a partisan measure, Jefferson and his party leaders were determined upon re17 pealing it as soon as Congress convened. l3 Ibid., p. 188. 14Loc. cit. Before the bill was finally made law the Aurora said: "One of the most expensive and extravagant, the most insidious and unnecessary schemes that has been conceived by the Federal party is now before Congress under the name of the Judiciary Bill, but which might with greater propriety be called a bill for providing sinecure places and pensions for thoroughgoing Federal partisans." While in the course of a debate on the Circuit Court Act, Senator Jackson of Georgia said: "We have been asked if we are afraid of having an army of Judges. For myself, I am more afraid of an army of Judges under the patronage of the President than of an army of soldiers. The former can do us more harm. They may deprive us of our liberties, if attached to the Executive, from their decisions, and from the tenure of office contended for we cannot remove them."-Ibid., p. 187 (7th Cong., 1st Sess., 47). 15Ibid., pp. 187-188. 161bid., p. 188. Mr. Charles Grove Haines in his recent book, The Role of the Supreme Court in American Government and Politics, 1789-1835, stated that the Judiciary Act of 1801 was "strictly a partisan maneuver which brought John Marshall to the Judiciary in order to prevent a nomination to this high office by Thomas Jefferson." Haines believed that Marshall's use of the Supreme Court to put into effect the Federalist doctrine of national supremacy over State rights was the seed from which the Civil War was germinated. "Marshall extended federal powers by interpretation and by implications," he said, "to cover the exercise of authority not granted by the Constitution."-University of California Press, Berkeley, 1944, pp. 42-43. 17As early as May, 1801, Elbridge Gerry wrote to Jefferson: "It is generally expected that among the first acts of the next Congress will be a repeal of the extraordinary judicial bill, the design of which was too palpable to elude common observation." Within a few days after his inauguration, Jefferson wrote that the principal Federalists "have retreated into the Judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." Jefferson thus claimed that the repeal of the act was necessary since "the Federalists have retired into the judiciary as a stronghold . . . and from that battery all the works of republicanism are to be beaten down and BAYLOR LAW REVIEW [Vol. XX The repeal of the Judicial Act of 1801 was accomplished the following year by Congress, restoring the number of the Supreme Court justices to six and abolishing the six new circuit courts with their sixteen separate judges.' 8 But that did not end the matter. The discussion in Congress over the repeal brought to a head certain constitutional issues that had been simmering ever since 1789. John Marshall, appointed as Chief Justice of the Supreme Court by Adams shortly before the Federalists went out of office, believed that the conception of a fundamental law and the right of a court to review legislation and pronounce on its validity were both essential to the preservation of the new federal republic. 19 Jefferson, on the other hand, believed that the Court could not establish the meaning of the Constitution for all time because of the principle of the separation of powers. 20 Jefferson believed that "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the '21 constitution in the cases submitted to its actions." erased."-Ibid., p. 193. In June, 1801, William B. Giles wrote: "What concerns us most is the sitauation of the Judiciary as now organized. It is constantly asserted that the revolution is incomplete, as long as that strong fortress is in possession of the enemy; and it is surely a most singular circumstance that the public sentiment should have forced itself into the Legislative and Executive Department, and that the Judiciary should not only not acknowledge its influence, but also should pride itself in resisting its will, under the misapplied idea of 'independence.' . . . No remedy is competent to redress the evil but an absolute repeal of the whole Judiciary system, terminating the present offices and creating a new system, defining the common law doctrine and restraining to the proper constitutional extent the jurisdiction of the Courts." -Ibid., p. 194. 18Edward Channing, The Jeffersonian Systen (American Nation Series), Harper & Bros. Pub., N. Y., 1906, p. 27. The repeal was carried, however, by one vote in the Senate and only after a most acrimonious discussion in the House. Congress reduced the terms of the Supreme Court to one annually, which should commence on the first Monday in February and which might be held by any four of the judges. One advantage of this arrangement was that the law repealing the Judiciary Act of 1801 would go into effect at once, before Marshall and his associates on the Bench could declare it unconstitutional, as the next session of the Supreme Court would not be held until February, 1803. Ibid., pp. 27-28. 19 Nathaniel W. Stephenson, A History of the American People, Charles Scribner's Sons, N. Y., 1934, Volume I, p. 345. 20 Corwin, op. cit., p. 293. 2 'Jefferson claimed the right, in the exercise of his Executive functions, to pass upon the validity of an act of Congress just as he recognized the right of the Court so to do in performing its judicial functions.-Ford, Paul I. (Ed.) The Works of Thomas Jefferson (Federal Edition), G. P. Putnam's Sons, N. Y., 1905, Volume XII, p. 137. 1968] COURT PACKING Jefferson believed that the Supreme Court was destroying our federal system of government. "The judiciary of the United States," he said, "is the subtle corps of sappers and miners constantly working under ground to undermine the foundation of our confederated fabric."'22 Jefferson expressed his great fear of the federal judiciary when he wrote that the Court "like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing [sic] insidiously the special governments into the jaws of that which 23 feeds them." It should be made clear, however, that Jefferson was not opposed to the doctrine of judicial review itself, for as late as 1798 Jefferson had written: "The laws of the land, administered by upright Judges, would protect you from any exercise of power unauthorized by the Constitution of the United States. '24 JefferThe following extract was a passage in a draft of Jefferson's first message to Congress, December 8, 1801, but which was omitted before its delivery: "Our Country has thought proper to distribute the powers of its Government, among three equal and independent authorities, constituting each a check on one or both of the others, in all attempts to impair its Constitution. To make each an effectual check, it must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment and uncontrolled by the other opinions of any other department .. "-Warren, op. cit., Volume I, p. 266. In a letter written to William Charles Jarvis on September 28, 1820, Jefferson remarked: "You seem, in pages 83 and 148, to consider the judges as the ultimate arbiters of all constitutional questions ; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est amplaire jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."-The Works of Thomas Jefferson (Ford Ed.), Volume XII, p. 162. 22The Works of Thomas Jefferson (Ford Ed.), Volume XII, p. 177. In the same vein of thought Jefferson wrote: "I am sensible of the inroads daily making by the federal, governments. The legislative and executive branches may sometimes err, but elections and dependence will bring them to rights. The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass."Ibid., p. 196. 23 Ibid., pp. 201-202. 24 Andrew A. Lipscomb (Ed.), The Writings of Thomas Jefferson, The Thomas Jefferson Memorial Association, Wshington, D. C., 1905, Volume X, p. 59. A letter to A. H. Rowan, September 26, 1798. BAYLOR LAW REVIEW [Vol. XX son's main criticism of judicial review was the failure of the Court to declare invalid many acts of Congress as unconstitutional. 25 It was the support which the Supreme Court gave to the wide scope of Congressional power which filled Jefferson, Madison, and their Republican followers with alarm. They had no fear of the Court using judicial review as a method of restricting Congress; they deplored the Court's failure to restrict Congressional encroachment. 26 When, in 1821, the Court upheld the power of Congress to, enact the famous 25th Section of the Judiciary Act authorizing writs of error to the judgements of State Courts, 27 Jefferson for the first time assailed the Court's power of judicial review of Federal laws. But, again, this criticism was directed to the Court for failure to declare the Act invalid, not for its exercise of the power to hold an act of Congress 28 unconstitutional. Keeping in mind the conceptions that both Marshall and Jefferson had as to the role of the Supreme Court in our system of government, it is easier to understand why Marshall saw and took the opportunity, in the well-known case of Marbury v. Madison,29 to develop at length and lay formally before the country the two ideas, fundamental law and judicial review. It is also clear that Jefferson was "playing politics" and was going to have the "spoils" when he refused to order his Secretary of State, Madison, to deliver a commission drawn up by President Adams at the close of his term of office, making Marbury a justice of 25Ibid., Volume XI, pp. 50-51. A letter to Mrs. John Adams, September 11, 2 1804. 6John Rowan of Kentucky said in the Senate, January 17, 1821: "As far as complaint or imputation is directed towards the Judges, it rests upon the charge, not that they did, but that they did not, interfere to arrest the career of the Legislative usurpation."-Annals of Congress, 16th Cong., 2nd Sess., 1824-25, p. 425. Also, see speech of Mahlon Dickerson of New Jersey in the Senate, January 19, 1821.-Ibid., pp. 209, et.seq. Thomas W. Cobb of Georgia said in the Senate, February 23, 1825: "In the work of aggression, it (the Court) has ever been foremost in the march. What claim of power by the Federal government has it not sustained?"- Ibid., 18th Cong., 2nd Sess., 1824-25, p. 654. 27 Cohens v. Virginia, 6 Wheat. 264 (1821). 28 Charles Warren, Congress, The Constitution, and the Supreme Court, Little, Brown, & Co., Boston, 1925 p. 195. 291 Cranch 137 (1803). 1968] COURT PACKING the peace in the District of Columbia-the facts which precipitated 30 the Marbury case. Primarily because of the Federalist composition of the Supreme Court, Jefferson repeatedly defied and flaunted the Supreme Court. In the treason trial of Aaron Burr, for example, when Marshall sent Jefferson a subpoena to produce certain documents, he not only refused, but sent word to Marshall that unless he acted with circumspection he would move to oust him from office. Jefferson followed up this threat by sponsoring a constitutional amendment limiting the terms of federal judges to ten years and making them removable by the President upon the adoption of a resolution 3 approved by two-thirds vote of the House and Senate. ' In a desperate attempt to "unpack" the Court, Jefferson employed the clumsy and dangerous expedient of judicial impeachment in order that an "executive-legislative oligarchy" might be eventually realized. 32 Justice Samuel Chase was the chosen victim. He was appointed an associate justice of the Supreme Court by President Washington in 1796. He was a man of brilliant intellect and had several important opinions to his credit. His rigid enforcement of the Alien and Sedition Laws embittered the Jeffersonians toward him. 33 Justice Chase was impeached in 1805 by the House on charges of "oppressive conduct" in trials under 30 Ireton, op. cit., pp. 82-83. Mr. Ireton said that Marshall's pronouncement in the Marbury case of the right of the courts to exercise judicial review withstood every criticism and every assault. He said, "It is our chief Constitutional buttress-a vertible Rock of Gibraltar, against which spasmodic waves of partisan resentment or irritation over decisions in point, upholding the Constitution's supremacy and denying effect or force to Congressional encroachment, break harmlessly and fruitlessly."-Ibid., p. 83. 31Robert S. Allen and Drew Pearson, "Seventy-Nine Old Men," Common Sense, April, 1937, Volume 6, p. 11. 32 Ireton, op. cit., p. 85. Mr. Ireton said: "Political battles usually are waged by men who rarely look beyond the passing moment, to whom all that comes to their mill is grist, and who, in brief, are more anxious to attain their end that scrupulous in the means they employ."-Loc cit. Regarding the expediency of impeachment, Jefferson wrote: "There are two measures which if not taken, we are undone. First, to check these unconstitutional invasions of state rights by the federal judiciary. How? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines, advanced by the Supreme Court, are contrary to the constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others, and opposed their usurpations ?"-The Works of Thomas Jefferson, (Ford Ed.), Volume XII, p. 207. S331bid., p. 87. BAYLOR LAW REVIEW [Vol. XX the Sedition Act for browbeating a jury into a false verdict, and for uttering from the Bench "an intemperate and inflammatory political harangue. ' 34 Since the Constitution provides for removal from office of all civil officers only on "impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors, '5 3 the Senate had no real grounds for impeachment 36 and Chase was cleared. The real objective of Jefferson and his followers struck deeper than their desire to rid the Court of Chase. The Jeffersonians hoped to nullify the existing interpretation of the Constitution through the removal of a majority of the justices and filling such vacancies with men who would be pliable and subservient to their will. If Chase had been removed, it would have been merely a 37 means to an end. One of the causes for the proposed Northern Confederation in 1814 was the alarm and disgust of the New England Federalists at Mr. Jefferson's anti-judiciary doctrines and measures.3 8 The Federalists claimed that Jefferson was seeking an "unchecked, arbitrary, Executive power," and a weakened Judiciary would undermine "one of the fundaments of the Constitution." The Federalists claimed that Jefferson was tampering with the independence of the Judiciary which was "the sheet-anchor of re'3 9 publican freedom." 34 Stephenson, op. cit., Volume I, p. 344. Sec. 4. Stephenson, op. cit., p. 344. Luther Martin, the eminent Maryland lawyer who defended Chase, had little difficulty convincing the Senate that "errors of law," or trial errors of a judge, while reviewable in an appellate court, were not "crimes or high misdemeanors" within the constitutional phrase.-Ireton, op. cit., p. 87. Yet, Claude Bowers, in his recent book fefferson in Power, claims that the failure to convict was due to blunders in handling the case, and to other extraneous factors, for the Republicans were strongly entrenched in the Congress. The impeachment had the effect of mitigating partisan political activities which had been practiced by the Court with abandon up to this time.-Leek, op. cit., p. 393. J7 1reton, op. cit., p. 86 Mr. Charles G. Haines said that the trial of Chase was on the whole a, victory for the Republicans. He said: "The trial made clear that Judgles might be removed for disreputable partisanship conduct on the Bench. Moreover, a definite restriction was placed upon the partisan activities of all federal judicial officers. It was necessary henceforth to manifest partisanship under the covert and unobtrusive method of judicial interpretation."-Haines, op. cit., p. 264. 38Warren, op. cit., Volume I, p. 323. 39 Ibid., pp. 322-323. These arguments were very similar to those presented by the opponents of President Franklin D. Roosevelt's Court plan. 35U. S. CONST. Art. II, 36 19681 COURT PACKING President Andrew Jackson also denied that the Court could establish the meaning of the Constitution for all time, but for a different reason that that of Jefferson. Jackson based his stand on the oath which every public officer takes to support the Constitution. 40 When Jackson vetoed the Bank Charter on July 10, 1832, he had replied to the point raised by the advocates of the bill to the effect that the Supreme Court had already decided upon the constitutionality of the United States Bank. 41 Jackson said that such a decision "ought not to control the co-ordinate authorities of this Government. It is as much the duty of the House of Representatives, of the Senate and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial 42 decision." President Jackson appointed five new justices, including a new Chief Justice. 43 This made a total of seven Democrats out of a total membership of nine on the Bench. The Democratic Review said in 1838 that "the present Democratic ascendancy may be regarded as the closing of an old and the opening of a new era" in the Court's history. The new era started, however, by Jackson sending for his appointees and berating them for their opinions. 44 Jackson was anxious to appoint men to the Bench who would reflect his constitutional views. Chief Justice Taney was selected with this in mind. 45 When an act was passed on the last day of 40Corwin, op. cit., p. 293. Certain passages in Attorney General Roger B. Taney's draft of Jackson's Bank Bill veto, written three years before Taney's appointment as Chief Justice, both help to explain Taney's appointment and Jackson's constitutional views. Taney wrote: "The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges and on that point the President is dependent of both. . . . Each Public official who takes an oath to support the Constitution swears that he will support it as hd understands it, and not as it is understood by others." At the same time as Taney's appointment, Jackson filled another vacancy on the Court by selecting a Virginia Congressman, Barbour, who had proposed a measure requiring the concurrence of five out of seven judges on any constitutional question.George B. Farnum, "The Constitution and the Higher Court," New York State Bar Association Bulletin, March, 1937, Volume 9, p. 47. 41McCulloch v. Maryland, 4 Wheat. 316 (1819). 42 Warren, op. cit., Volume II, pp. 221-222. 43 Note 40, supra. 44 Willard L. King, "The Breakfast Theory of Jurisprudence," Dicta, April, 1937, Volume 14, p. 145. 4 SNote 40, supra. BAYLOR LAW REVIEW [Vol. XX President Jackson's term of office, March 3, 1837, enlarging the Court from seven to nine,46 Jackson filled the new positions on the same day. He appointed John Catron of Tennessee and William Smith of Alabama. Catron had been a vigorous Union man throughout the Nullification movement and a warm supporter of Jackson's policy of maintenance of Federal Supremacy. Smith declined the nomination, and reasons for his declination serve to confirm the political character of the judiciary. Smith didn't believe a judge should enter into political discussions, but recognized that a judge "was not bound by any moral principle to abstain from political discussions." For fear that his political views might "cast a blot upon the sacred ermine," Smith refused the "very dignified office at light labors, and a permanent salary of $5,000 a year."'47 In the place of Smith, President Van Buren, on April 22, 1837, appointed John McKinley of Alabama, a for48 mer United States Senator. That the enlargement of the Court from seven to nine did not, however, have the effect of adding to the efficiency of the body may be inferred from a letter by Justice Story at the close of the 1838 Term: You may ask how the Judges got along together? We made very slow progress, and did less in the same time than I ever knew. The addition to our number has most sensibly affected our facility as well as rapidity of doing business. "Many men of many minds" require a great deal of discussion to compel them to come to definite results; and we found ourselves often involved in long and very tedious debates. I verily believe, if there were twelve judges, we should do no 49 business at all, or at least very little. Lincoln, in commenting on the right of the Court to exercise finality in the practice of judicial review, argued that "to identify 46 At various times Presidents Madison, Monroe, Adams, and Jackson had recommended an increase in the number of judges and of Circuits, but had failed to receive the approval of Congress, owing to its unwillingness to allow new appointments to be made by the existing President. However, the crowded conditions of the inferior Federal Courts in the Western and Southwestern states made it imperative for the creation of new circuits in order that the people of these territories should not be denied justice.Warren, op. cit., Volume II, pp. 313-14. 47 Warren, op. cit., Volume II, pp. 314-15. 48Ibid., p. 315. 49 Ibid., p. 315. COURT PACKING 1968] the Court's version of the constitution with the constitution itself was incompatible with the idea of popular government."50 This viewpoint was evidenced by his opinion regarding the constitutional finality of the Dred Scott 5' decision. In his inaugural address of 1861, Lincoln said: I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decision must be binding in any case upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by the other departments of the government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made as in ordinary litigation between parties in personal actions, the people will have ceased to be their own master, their government having to that extent practically resigned 52 into the hands of that eminent tribunal. In making appointments to the Supreme Court, Lincoln was also guided by the principle that the appointee should reflect the opinions of the appointing officer. For example, when Lincoln was about to appoint, in December, 1864, Salmon P. Chase to, fill the vacancy left by the passing of Chief Justice Roger B. Taney, he was extremely frank as to his reasons for making this choice. He wrote to Representative Boutwell of Massachusetts as follows: First, he occupies the largest place in the public mind in connection with the office; then we wish for a Chief Justice 5 0Corwin, 51 2Scott v. op. cit., p. 294. Sandford, 60 U.S. 393, 15 L.Ed. 691 (1856). S James D. Richardson (Compiler), Messages and Papersof the Presidents 1789-1896, Washington Government Printing Office, 1896, Volume I, pp. 9-10. Prior to his election to the Presidency, Lincoln anticipated the above viewpoint on the Court when, referring to the Dred Scott decision, he remarked: "Somebody has to reverse that decision, since it is made, and we mean to reverse it peacably,"-Tully Nettleton, Political Pressure on the Supreme Court, Christian Science Monitor Magazine, February 24, 1937, p. 3. .160 BAYLOR LAW REVIEW [Vol.: XX who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. 5 3Therefore, we must take a man whose opinions are known. An even more serious charge brought against Lincoln by competent authorities is that he was responsible for an increase in the personnel of the Court, primarily for "political reasons." On March 3, 1863, Congress created a new (Tenth) Circuit com54 prising California and Oregon, and a tenth Associate Justice. On the same day Lincoln appointed Stephen Johnson Field of California to the new position on the Court, his appointment being confirmed by the Senate on March 16, 1863. Carl Swisher, a very careful and scholarly biographer, stated in his books on Taney and Stephen J. Field that there was a widespread suspicion that Lincoln wanted another man on the Court on whom he could depend lest that body invalidate some of the crucial and doubtful wartime legislation which was coming before it at that time.55 The fact that Field was a strong Union man and that the New York Evening Post said of him, ". . . and the Government will have no more determined supporter," 56 contributed to the substantiation of this belief. Likewise, President Grant has been accused of attempting to control the Court through "packing. 5 7 In 1869 the Congress s3 Warren, op. cit., Volume III, p. 123. However, six years later, Chief Justice Chase who, as Secretary of the Treasury, had accepted only reluctantly the acts which made greenbacks legal tender for debts, joined in a decision holding those war-time financing acts unconstitutional and unenforceable [Hepburn v. Griswold, 8 Wallace 603 (1870)].-Robert S. Cushman, Leading Constitutional Decisions (7th Ed.), F. S. Crofts & Co., N. Y., 1941, p. 222. This is one of numerous instances in which a President has been unable to fortell the attitude of his appointee after appointment to the Bench.-Nettleton, op. cit., p. 3. 54 5 Warren, op. cit., Volume III, p. 102. SLeek, op. cit., p. 381. 56 Warren, op. cit., Volume III, p. 102. It is interesting to note that while the Court, during Lincoln's administration, was increased from nine to ten in order to get a more favorable court. Congress, by an act of July 23, 1866, reduced the number on the Court to eight in order to prevent President Johnson from gaining control of the Court through appointments. The Act provided that as vacancies occurred on the Bench, they would not be replaced by the President until the Court was reduced in size to eight members. The death of Judge Wayne on July 5, 1867, finally brought the Court down to eight justices.-Ibid., p. 144-145. 57 Note 5, supra. 1968,]_ COURT PACKING had increased the Court to nine members. Onl February 7, 1870, the Supreme Court, reduced by two vacancies to seven members, decided by a four-to-three vote that Congress had no implied power to make paper currency legal tender during time of war.5 8 On the day that this case was decided President Grant nominated William Strong of Pennsylvania and Joseph B. Bradley of New Jersey to fill the two vacancies. These men were confirmed by the Senate and on February 1, 1870, the Court ordered a reargument of the constitutional issues involved in the legal tender decision. Then on May 1, 1871, less than fifteen months after Hepburn v. Griswold, the Court reversed its decision by a vote of five-to-four, both Bradley and Strong being on the side of the majority.5 9 In spite of the fact that such an eminent expert on the Court as Warren denied that Grant packed the Court,60 evidence, some of which is very recent in discovery, seems to point to the incontrovertible fact that Grant appointed Bradley and Stone for the specific purpose of overruling a decision which Grant knew was to be handed down the very same day he nominated those men to the Bench. The Rentinisecences of Boutwell, Grant's Secretary. of the Treasury, stated definitely that about two weeks before the public announcement of the decision in Hepburn v. Griswold, Chief justice Chase told Boutwell what the decision was to be. Chase had the highest motives for violating the secrecy of the Court; as a man who had held the position of Secretary of the Treasury he felt that the Treasury ought to be in a position to protect itself against any unfavorable repercussions that the decision might that have. While there is no absolute proof, it seems logical 61 Boutwell would have informed Grant of the decision. The answer to the belief that Grant really "packed" the Court SSHepburn v. Griswold, 8 Wallace 603 (1870). 59Cushman, Robert Eugene, Leadikq Constitutional Decisions (7th EdiF. S. Crofts & Co., N. Y., 1941, p. 222. tion), 60 Warren points out that both Bradley and Stone were nominated on recommendation of Hoar, who later formally stated that their views on the Legal Tender issue had nothing to do with his recommendation. Warren also wrote: "The President himself formally stated that he had no advance knowledge as to the decision of the Court, and members of his Cabinet later stated the same thing. The newspapers of the time clearly show that there was no leak as to the decision, for their published forecasts were op. cit., Volume III, p. 239. inaccurate."-Warren, 61Leek, op. cit., pp. 279-380. BAYLOR LAW REVIEW [Vol. XX is based on unimpeachable and hitherto unknown and unavailable source material-namely, the diary of Hamilton Fish. Mr. Sidney Ratner, having access to the above mentioned diary, discovered that several conversations between Grant and Fish irrevocably prove that Grant was much concerned about the Court's first opinion; that he hoped the Court would reverse that decision; and that he knew Strong's stand on the question and felt pretty sure of Bradley's; though he did not go so far as to exact any62 thing in the nature of a pledge from either. Coming on down the years of time, another President who was very careful that he made the "right" appointments to the Bench was Theodore Roosevelt. He would not consider a man for appointment, no matter how immaculate his record might be otherwise, unless his views were in accord with his own. 63 Roosevelt had the opportunity to appoint three justices on the Supreme Court, one of whom was the celebrated jurist, Oliver Wendell Holmes. 64 In connection with his consideration of the appointment of Holmes, Roosevelt wrote as follows to Henry Cabot Lodge on July 10, 1902: Judge Holmes was in entire sympathy with our views, that is with your views and mine and Judge Gray's for instance, just as we know that Attorney General Knowlton is. Before I would feel justified in appointing him . . . I should hold myself as guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on 65the great national policies for which we stand in public life. Theodore Roosevelt did his best to "pack the Court," which he considered it his duty to do; although he did not go so far as Franklin Roosevelt in advocating an increase in the size of of the Court in order to "pack" it. President Wilson also engaged in "court-packing" with his appointment of Mr. McReynolds to the Supreme Court. 66 In 1916 62 Sidney Ratner, "Was the Supreme Court Packed by President Grant?" Science Quarterly, September, 1935, Volume 50, pp. 350-351. Political 63 Leek, op. cit., p. 384. 64 Bates, op. cit., p. 229. 65 Leek, op. cit., pp. 384-385. 66Justice McReynolds proved to be one of the most conservative of the justices on the Franklin Roosevelt Court. 1968] COURT PACKING President Wilson urged the confirmation of Louis Brandeis to the high Bench because of "his knowledge of modern economic conditions and of the way they bear upon the masses of the people,', and "his genius in getting persons to unite in common and harmonious action."' 67 Wilson, through his power of appointment, hoped to liberalize the Court. Likewise, it was no accident when the Court took on a decidedly narrow and conservative tinge after Harding had appointed four men between 1921 and 1923.68 Later, in 1930, the appointment of Charles Evans Hughes to the Chief Justiceship by President Hoover was severely criticized by the liberals in the Senate. The younger Senator La Follette exclaimed, "The President is loading down the Federal Judiciary with men whose economic viewpoint is that of the great aggregations of capital"; while Senator Norris declared that "no man in public life so exemplifies the influence of powerful combinations in the political '69 world as Mr. Hughes." The first change in Supreme Court membership under Franklin Roosevelt's administration came with the retirement of Justice Van Devanter, which he announced in May, 1937, while the Senate was still engaged in the memorable struggle to infuse "new blood" into the Court. The President made his first nomination of a Supreme Court justice three months thereafter when he named Justice Black to the Bench. 70 The retirement of Van Devanter played a part in the defeat of the President's proposal for enlargement of the Court. 67 1rving Dilliard, "Mr. Roosevelt and the Supreme Court; the Observation of a Citizen," Survey Graphic, February, 1937, Volume 26, p. %. These views were expresssed by Wilson in a letter written to Senator Culberson of Texas, Chairman of the Senate Judiciary Committee. He concluded his letter with these words: "I beg that your committee will accept this nomination as coming from me quick with a sense of public obligation and responsibility."-Loc. cit. 68Leek, op. cit., p. 385. 69 Bates, op. cit., p. 295. Bates pointed out that for the past fourteen years prior to Hughes' appointment to the Bench by Hoover, Hughes had been subjected to continuous reactionary influences. He was head of the firm of Hughes, Rounds, Schurman and Dwight, and had a large corporation practice. The liberal attitude of Hughes, while he was an Associate Justice from 1910 to 1916, probably was a factor in the Senate's confirmation of his appointment to the Supreme Court in 1930.-Ibid. pp. 384-385. 70Joseph Alsop & Turner Catledge, The 168 Days, Doubleday, Doran & Co., Garden City, N. Y., 1938, p. 307. BAYLOR LAW REVIEW [Vol. XX Conclusion The above discussion gives ample evidence that President Roosevelt's attempt to control tile Court in 1937 through "court packing" was certainly not without precedent. The past relationships between the Presidency and the Court tend to confirm the statement, "While the Court is over the Constitution, the President is over the Court." 71 After all allowances have been made, there can be no denying that in the vast majority of Supreme Court appointments presidents have extended their influence over the Court and far beyond their term of office. They have proved to be the "lengthening shadow of the man" who has had the 72 privilege of holding the highest office in the land. Not only through appointments have presidents obtained favorable courts, but by increasing or decreasing the personnel of the Supreme Court through congressional action, presidents have sought and gained control over the Court. Presidents John Adams and Jefferson sought to gain control of the Court by these tactics. Jackson, Lincoln, and Grant more firmly entrenched their control over the Court as a result of increases made in the Court during their terms of office. "The traditional American way," it has been wittily aired, "of being radical with the Supreme Court," is to alter its personnel rather than its struc73 ture or powers. Thus, there can be no doubt but that President Roosevelt's 71Note 4, supra. 72 Dilliard, op. cit., p. 96. It is true, however, that presidents have been occasionally mistaken in the men they nominate. For example, some of the justices appointed by Jefferson and Madison did not hesitate to join with Marshall in sustaining and developing the strongly nationalistic interpretation of the Constitution. In a more recent case, President Wilson appointed Mr. McReynolds in the expectation that, as a justice, he would continue his belief in the policies he had advocated as attorney general; President Coolidge named Mr. Justice Stone, surely not believing he would become a "persistent dissenter."Fraenkel. What Con Be Done About the Constitution and the Supreme Court? 37 COLUM. LAw REv. 218. 73 Corwin, op. cit., p. 294. During President Johnson's administration it was the Congress, instead of the President, that dominated the Court. Congress, in 1866, reduced the number of justices on the Bench to prevent Johnson from dominating the Court through his appointing power.-Note 58, supra. Also, the Congress by a special statute in 1869 took away the Court's jurisdiction in the case E.r parte McCardle, 7 Wall. 506 (1869). Such action, however, has been frowned upon as endangering the independence of the Court and has not been resorted to since that time-Cushman, op. cit., p. 63. COURT PACKING court proposal of February 5, 1937, was shaped by its authors to comply with the demands of tradition. 74 One might predict with a reasonable degree of accuracy that if Roosevelt had had the opportunity to appoint at least one or two justices prior to 1937, there would have been no proposal calling for an increase in the personnel of the Court. 75 Presidents Taft, Lincoln, and Jackson appointed five justices each; Harding, Cleveland, Harrison, and Grant, four each; Hoover, Wilson, Theodore Roosevelt, Van Buren, Jefferson, and John Adams, three each; Arthur, Hayes, Polk, and Madison, two each. 76 Perhaps chance had been unkind to Franklin Roosevelt in not having had the opportunity of making appointments to the Court in his first term of office, but the method he employed to facilitate his control over the Court proved to be very unpopular. 74lbid., p. 295. 75 Up to 1937 there has been an average of almost one appointment to the Bench every two years. For purposes of speculation, suppose that all four of the consistently conservative members of the Court had died or resigned during Roosevelt's first term. Does anyone doubt that persons whose views largely coincided with the President's would have been named to the Bench, and that the New Deal legislation by and large, would have been safe?-Leek, op.7 6cit., 386. Dilliard, op. cit., p. 94. BAYLOR LAW REVIEW Published quarterly throughout the year by Law Students of Baylor University, Waco, Texas. Four issues of the Baylor Law Review constitute one volume; one volume a year. Printed by Baylor University Press. Unless notice to the contrary is received at the Business Office, it is assumed that a renewal of the subscription to the Baylor Law Review is desired. Please notify the Business Manager of any change of address. $5.00 Per Year (4 Issues) $1.50 Per Copy EDITOR ROLLIN A. VAN BROEKHOVEN SECTION EDITORS Gus BLACKSHEAR JERRY Comments D. BOLIN Notes JOHN W. MICHENER, JR. Recent Developments ASSOCIATE EDITORS ROBERT A. ALLEN Roy LEE BARRETT MICHAEL BORNHOUSER CANDACE COWAN FACULTY PUBLICATIONS COMMITTEE ERWIN A. ELIAS, Chairman DAVID M. GUINN H. D. WENDORF MICHAEL J. VAUGHN GAYLE ALBRITTON Business Manager