Chapter 10

CHAPTER 9

CRITICISM OF THE SUPREME COURT IN 1935-36

"Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I made this appeal, but to all who love these great and true principles." Abraham Lincoln, August 30, 1856.

The decision of the Supreme Court on May 6, 1935 Footnote1 declaring the Railroad Retirement Act unconstitutional and the Court's subsequent decision in the Schechter case Footnote2 which declared the National Industrial Recovery Act unconstitutional was an unexpected blow to Roosevelt's New Deal legislation. The invalidation of several New Deal acts by the Supreme Court, resulted in the introduction of a number of new bills and resolutions in Congress during 1935 and 1936, to curb the powers of the Supreme Court.

Bills and resolutions ranging from simple measures to prohibit the Court, by legislative enactment, from passing on the constitutionality of acts of Congress, to resolutions calling for constitutional amendments were introduced in 1935 and 1936. Some bills sought to make Congress the sole judge of the constitutionality of its acts, others would have the Supreme Court render immediate advisory opinions on acts whose constitutionality was in doubt, and still others would require a two-thirds or a three-fourths vote of the Court to declare an Act unconstitutional.

On May 8, 1935, two days after the Supreme Court's decision invalidating the Railroad Retirement Act, Footnote3 Representative Monagham, of Montana, in a speech to the House of Representatives, urged his colleagues to curb the power of the Supreme Court. He advocated "packing" the Supreme Court, and suggested that Congress provide for advisory opinions, require unanimous decisions, or deprive the Court of its power to review acts of Congress. Footnote4 His speech was typical of many which were to follow. As the members of Congress saw one after another of their efforts to lift the country out of depression cast aside by the Supreme Court, their feeling of frustration grew.

Senator La Follette, and Representatives Cross of Texas, Tolan of California, and Hobbs of Alabama introduced resolutions for a constitutional amendment providing that the President, through the Attorney General, when in doubt as to the constitutionality of an Act of Congress, may call upon the Supreme Court for an immediate written opinion. Representative Tolan's resolution provided that Congress, as well as the President, may call for immediate advisory opinions.

Representatives Crosser and Young introduced bills providing that three-fourths of the members of the Supreme Court shall concur before the Court may declare an act of Congress unconstitutional.

Representative Ramsay of West Virginia introduced a bill requiring that seven of the nine members of the Supreme Court must concur before the Court may declare an act unconstitutional, and a joint resolution for a constitutional amendment providing that the inferior federal courts shall not pass on the constitutionality of an Act of Congress and that three-fourths of the judges of the Supreme Court must concur in such declaration.

Senator Norris of Nebraska offered a resolution for a constitutional amendment giving the Supreme Court exclusive jurisdiction to declare Acts of Congress unconstitutional and then only by a two-thirds majority of the Court and provided the action is begun within six months after the passage of the Act.

Senator Norris' constitutional amendment provided that:

The Supreme Court shall have original and exclusive jurisdiction to render judgment declaring that any law enacted by Congress in whole or in part is invalid because it conflicts with the Constitution; but no such judgment shall be rendered unless concurred in by more than two-thirds of the members of the Court, and unless the action praying for such judgment shall have been commenced within six months after the enactment of the law. Footnote5

A similar amendment, but without the six months proviso, was proposed in the House. Footnote6 All of these proposed amendments deprive inferior federal courts and state courts of all power to pass on the constitutionality of federal statutes and all would apply only to acts of Congress.

Representative Sisson of New York introduced a resolution calling upon the House Committee on the Judiciary to make a study of the right of the Supreme Court to declare an Act of Congress unconstitutional and make a written report to the House.

No one in Congress really contemplated that serious action would be taken on any of the bills introduced. They, as well as the comment on them in the Congressional Record, are analogous to the obiter ditca Footnote7 of a judicial decision. They contained nothing definitive, but they did evine an attitude; one of outrage and brought to the attention of the public the helplessness of Roosevelt, caused by an adversarial Supreme Court in fulfilling his mandate to the people in their time of need. After the Butler case Footnote8 decided by the Supreme Court in January 1936, invalidating the Agricultural Adjustment Act, the attitude in Congress became crystallized in more imperative form and many thought that some reform of the Supreme Court, whether by resolution or constitutional amendment was needed.

During the Seventy-fourth Congress, over forty proposals to curb the court's power were introduced. In addition there were also a number of proposals for constitutional amendments enlarging the federal power by granting to the Congress the authority to legislate concerning industrial disputes, and production control, agriculture, and social welfare. The majority view seemed to be that the end sought can best be attained by directly limiting the Supreme Court's power to review. It is proposals of this type which this chapter will attempt to summarize.

All of the bills introduced on this subject for change by statute applied to state laws as well as to acts of Congress. They would not, however, attempt to interfere with the Supreme Court's original jurisdiction. One proposal required concurrence of seven members of the Supreme Court to declare laws unconstitutional, and would prohibit inferior federal courts, but not state courts, from passing on questions of constitutionality. Footnote9 The federal courts would be required to certify them to the Supreme Court for determination. Several other bills introduced in Congress, were designed to enlarge the majority necessary to pronounce a law unconstitutional. Three-fourths was the minimum in two bills, Footnote10 a third required a unanimous decision. Footnote11

Decisions of a bare majority of the Court invalidating acts of Congress have long been focal points of controversy. Such decisions are almost unanimously deplored. The first arose in the 1820's. At that time resentment had been caused by the decisions nullifying state laws by a bare majority of a quorum of the Court, or a minority of the full membership. Martin Van Buren and Henry Clay supported resolutions which contemplated requiring by act of Congress - not by constitutional amendment an extraordinary majority of the Court to concur on decisions adverse to constitutionality of state statutes. Daniel Webster, opposing such measures, proposed to require concurrence of only a majority of the justices competent to sit in the cause involved. The criticism of the Supreme Court at this time may have influenced Chief Justice Marshall to announce in 1834 that judgment in cases when constitutional questions were involved would not be rendered unless enough justices concurred to make the decision that of a majority of the Court.

Criticism was then quieted until just before the Civil War, when the Dred Scott decision Footnote12 revived it. It appeared again in the Reconstruction days and once more during the Bull Moose campaign in 1912.

Two amendments in 1935 were proposed to abolish the Court's power to review legislation. One provided that:

The Supreme and inferior courts of the United States shall have no jurisdiction to declare any acts of Congress unconstitutional. Footnote13

The other proposal was broader. Its provisions were:

No court in the United States or any State, shall declare unconstitutional or void any law enacted by the Congress of the United States. All laws of the United States shall remain in full force and effect throughout the United States until repealed by the Congress of the United States, or until vetoed or repudiated by the actions of the legislatures of three-fourths of the States. Footnote14

In addition to the proposed amendments, an act of Congress was suggested which would provide:

That from and after the passage of this act, Federal judges are forbidden to declare any act of Congress unconstitutional. No appeal shall be permitted in any case in which the constitutionality of the act of Congress is challenged, the passage by Congress of any act being deemed conclusive presumption of the constitutionality of such act. Any Federal judge who declares any act passed by the Congress of the United States to be unconstitutional is hereby declared to be guilty of violating the constitutional requirement of 'good behavior' upon which his tenure of office rests and shall be held by such decision ipso facto to have vacated his office. Footnote15

Two proposals were made for amendments which would require the Supreme Court to render an advisory opinion upon any act by Congress, where requested to do so by the President or by the Congress. Footnote16 Under another proposed amendment, an act passed by Congress and approved by the President, would not become law unless presented by the President to the Supreme Court of the United States for its decision on the constitutionality thereof and not until sixty days after it has been so presented. This amendment also stipulated that, "it shall be the duty of the Supreme Court to render such decision within sixty days."

In addition to the extra burden these amendments would place upon the Supreme Court, they would be impractical in still another way, in that it would require the Court to pass on laws before their operation has been observed. Many believed that the adoption of this type of proposal would result in more decisions of unconstitutionality than the system of judicial review.

Opponents to these amendments argued that, whether or not amendments of this type would be wise, an act of Congress having the same effect would undoubtedly be unconstitutional. Early in its history the Supreme Court refused to vouchsafe an advisory opinion to President Washington, feeling that this duty belonged under the Constitution to the Attorney General and did not comport with true judicial functions. This precedent has been regarded as settling the question.

Nevertheless in 1935, a bill was introduced in Congress which would direct the Attorney General to submit legislation to the Supreme Court, "and the Court shall furnish him its written opinion within ninety days." Footnote17

For instance, a bill which provided for direct review by and advancement on the docket of the Supreme Court of any decision of a district court involving a constitutional question when the Attorney General certifies that the national public interest justifies such a direct review was introduced in the Senate. Footnote18

In 1935, a resolution was introduced in the House which called for no amendment or statute but provided for an investigation of the problems and of methods for solving it. It instructed the House Judiciary Committee to investigate whether the "general welfare" clause was a grant of power to Congress; whether the Supreme Court was authorized to annul acts of Congress; and, if the House should determine that the Constitution has been misconstrued, what measures it should take "to restore it to its necessary intended, and rightful place as the supreme legislative authority of the people of the United States." Footnote19

Two rather unusual proposals submitted during the 1935-36 congressional session, remain to be mentioned. One sought to take from the lower federal courts the authority to decide the constitutionality of federal laws and vest it in a single court, to be created, from which an appeal could be taken directly to the Supreme Court. Footnote20 The other proposal sought to increase the membership of the Supreme Court from nine to eleven. Footnote21

In 1935-36, the prevailing sentiment in the Congress was that the Court had "usurped" powers which constitutionally belong to the legislative branch. A speech by Representative Lewis, of Maryland, was typical of the attitude of many members of the House. He expresses the belief that the Court had written into the Constitution its power to invalidate acts of Congress, the judge's private theories of right and wrong (added under the "due process" clause), and limitations on the "general welfare " clause. To restore the Constitution to its original state he suggested that the following remedies be adopted: Under the "exceptions and regulations" clause, a statute would be enacted providing that only a state, and never a private litigant, would be heard to complain of an invasion of its sovereign rights by Congress; jurisdiction would be denied to nullify revenue laws at the instance of a private litigant; jurisdiction would be left with the courts to review the constitutionality of statutes violative of provisions as to specific subjects, such as right of petition, habeas corpus, trial by jury, freedom of press, etc.; jurisdiction would be denied to annul statutes on such nonspecific titles as general welfare, commerce among the states, taxation, due process of law, and money; any decision that an act of Congress is void should be subject to reversal by Congress.

On February 17, 1936 Footnote22 in direct response to the massive criticism being leveled at the Supreme Court, the Court by a majority of eight-to-one reaffirmed the principle that:

"one who accepts the benefit of a statute cannot be heard to question its constitutionality. Great Falls Manufacturing Co. v. Attorney General, 124 U.S. 581; Wall v. Parrot Silver & Copper Co., 244 U.S. 407; St. Louis Casting Co. v. Prendergast Construction Co., 260 U.S. 469." Footnote23

This doctrine known as the "Ashwander Doctrine" was used by the Supreme Court when they refused to pass on the constitutionality of Title VIII of the Social Security Act of 1935, in Steward Machine Company v. Davis Footnote24 decided May 24, 1937. The Ashwander doctrine is used today by the courts as the wall which bars the citizenry from bringing certain constitutional issues before the courts. Footnote25 It was hoped by the Supreme Court in 1936 that the Ashwander v. Tennessee Valley Authority decision would alleviate much of the criticism building against the judiciary branch by finding a vehicle in which certain parts of Roosevelt's New Deal legislation could find acceptance by the courts.

Footnote1

Railroad Retirement Board v. Alton, 295 U.S. 330 (1935).

Footnote2

295 U.S. 495 (1935).

Footnote3

Note 1, supra.

Footnote4

79 Congressional Record, pg. 7149 (1935).

Footnote5

S.J. Res. 149.

Footnote6

H.J. Res. 287.