Should the U.S. Supreme Court be a place of justice, or of law?
Though this question at first glance may appear to be one of those semantic traps – such as, “Have you stopped beating your wife? – its answer vitally affects your life and mine.
The traditional view of the court is that it is the final authority on the Constitution. Its only task, say political purists, is to decide whether laws passed by the legislative branch of the government are really legal.
Since the days of President Franklin D. Roosevelt, the Supreme Court has been undergoing a gradual change. It was he who initiated the practice of appointing “liberal” politicians to the bench instead of experienced judges.
Those of us today in their late forties can remember well Roosevelt’s audacious attempt to “pack” the high tribunal. He tried to get Congress to increase the number of judges from nine to 12 so he could appoint additional “sympathetic” politicians and thwart decisions which were overturning many of his New Deal ideas.
Congress, which until then had blindly rubber-stamped Roosevelt’s wildest proposals, finally rebelled and refused to tamper with the court machinery. It was the first twinge of alarm by the party faithful who had ridden into office on the Roosevelt landslide.
With the recent nomination, and certain confirmation, of former New Dealer Abe Fortas to the court, the transition from law to justice is complete. The test of a law now will be, “Is it fair?” rather than “Is it legal?”
The philosophical approach of the Supreme Court justices had remained about evenly divided between the jurists and the reformers until the death of Chief Justice Fred Vinson in 1953. Then President Dwight D. Eisenhower appointed California Governor Earl Warren to the post of Chief Justice. Unknowingly, Ike tipped the balance.
Warren had been a popular and able governor. He had been careful not to align himself with the liberals or conservatives. The mood of the country was “middle of the road,” and Warren seemed to be a model of neutrality.
Once relieved of the necessity of winning votes, Warren revealed himself to be a champion of individual rights as HE, not Congress, saw them.
After only two years on the bench, he wrote the now famous decision outlawing school segregation. He led the bench in abolishing school prayer and in reapportioning state legislatures on a “one man, one vote” basis. He also joined in the decision freeing some communists convicted of sedition, for which the John Birch Society still demands his impeachment.
For the past decade, Warren has consistently voted with the “activist” group of justices who evidently hold to the theory they can, and should, correct the shortcomings of a timid Congress.
Arthur Goldberg, during his short term on the Supreme Court, identified himself with the Warren outlook.
Now U.S. Ambassador to the United Nations, Goldberg was a liberal, labor-supported Jew. In these days of minority deference, our presidents have felt it necessary to keep one justice of these exact political qualifications on the bench. Consequently, President Lyndon B. Johnson has tapped his long time friend, Fortas, to replace Goldberg. The balance for “fair” decisions remains unchanged.
There is no objection at all, on my part, to Fortas’ neat appeal to an important block of minorities. He is just the counterpart of the conservative southern Protestant and the moderate midwestern Catholic also carefully represented on the court. It’s likely a Negro will be the next justice.
I do find disappointing, however, the present state of political affairs which make such opportunistic appointments necessary.
Fortas is one more of a long line of non-judicial Supreme Court Justices to troop to the bench. He was general counsel of Roosevelt’s Public Works Administration at 29 and undersecretary of the Interior at 32. Now 55, he is described by President Johnson as “a man of humane and deeply compassionate feelings toward his fellow man – a champion of our liberties.”
Inevitably, the rhetorical question suggests itself, “Is it the duty of a Supreme Court justice to champion causes with enthusiasm, or arbitrate disputes impartially?
As a senior partner of a prominent Washington D.C. law firm, Fortas has defended such clients as Owen Lattimore, the U.S. State Department specialist accused of lying about Communist associations; and Bobby Baker, former Democratic Senate aide whose lucrative business dealings came under Congressional investigation last year.
More recently, Fortas attracted public notice when he attempted to get Washington D.C. newspapers to suppress the story last fall about the arrest of President Johnson’s aide, Walter Jenkins, on morals charges.
Congressman Durward G. Hall summed up my misgivings when he said recently before the House of Representatives, “There is a serious question whether Fortas will be able to exercise independence of his ties with the President – he has been a quiet participant in some of the more dubious transactions of the Johnson Administration.”
Many Americans, including myself, have two minds concerning the conflict between justice and law. Unfortunately, the two are not synonymous.
In the hand of shysters, bureaucrats, and grafters our laws are dangerous weapons. Somewhere the spirit of the law must prevail over arbitrary letters.
Yet, the personal convictions of men beyond reach of the electorate can not be allowed to transcend the will of the people as expressed by duly elected representatives.
Until there is less politics and more statesmanship on the Supreme Court bench, we will be better served by a court of law than one of men.
August 20, 1965