The Supreme Court Today

by LOUIS L. JAFFE

1

THE din of discord currently reported among the black-robcd justices of the Supreme Court mystifies the public. Many laymen can no longer “place” the Court. It is as if one’s father had suddenly become a doubtful character. Reaction varies, of course, depending on the position the Court previously occupied in one’s personal scheme. The first massive reversal of long-attacked constitutional precedent came as a relief to “liberals” and no doubt as a blow, softened by its inevitability, to “conservatives.” But when the so-called New Deal Court began splitting into explosive fragments, even the thick-skinned, sophisticated lawyer grew puzzled. His professional soul became troubled by the nearly unexampled spectacle of august judges personally upbraiding each other in formal written opinions.

Was this the new, the reconstructed Roosevelt Court? Here was a Court of which seven judges out of nine had been picked by the President himself for conformity to his ideas and his ideals; and an eighth, Stone, had been raised by him to the Chief Justiceship. Never had a President had like opportunity so to “embench” his policy in the holy of holies. Could we not expect that, as with a single voice, the judges would harmoniously hymn the millennium, and that the Court would no more be split asunder as it was in the twenties and the early thirties, “liberal” and “conservative” glaring at each other?

Yet the current clamor, however significant, should not be allowed to obscure a truth of first importance to the layman: that the judges today are agreed on the crucial issues which until 1936 split the Court. It could be said that Roosevelt lost the battle to pack the Court but won the campaign to make the New Deal constitutionally solid. But the invidious attribution of the Court’s decisions to Roosevelt overlooks the fact that, in confirming the New Deal, the Court adopted constitutional views which the great Holmes-Brandeis team, later joined by Stone, Hughes, and Cardozo, had fought for in never ceasing dissent.

The break came even before the changes in personnel. In 1937, when the Court-packing battle was at its height, Mr. Justice Roberts cast his vote with Justices Brandeis, Stone, Cardozo, and Hughes to uphold the constitutionality of the state minimum-wage legislation; observers regarded this as a reversal of his view and one cynic said of his action that, “a switch in time saved nine.” However that may be, it was the same majority which two weeks later upheld the power of Congress to pass the Wagner Labor Relations Act.

The effect of these decisions was finally to remove an impediment to social legislation set up by a handful of judges in the name of the Constitution. For the defeated conservative wing of the Court it was a good deal more than this. Mr. Justice McReynolds spoke for them when he moaned from the bench, “The Constitution is gone.”

Today the justices are in complete agreement on certain fundamental propositions. First, the state and Federal legislatures may regulate wages, prices, and all the many relations and aspects of our industrial and economic life. Only if the regulation is so arbitrary and unfair as to shock the sense of fundamental decency can it be said to violate the guarantee of “due process.” It seems amazing that there could ever have been any doubt that a modern state had these powers. But certain of our constitutional judges had seized upon the vague injunction of the Fifth and Fourteenth Amendments against taking “life, liberty, or property” “without due process of law” — a provision primarily intended at first to guarantee fair trial procedure — as a barrier against regulation. They laid down the doctrine that a regulation of wages or of prices was a taking of “liberty” “without due process of law” because it interfered unreasonably with the power to make contracts.

Our constitutional practice is unique among the great nations in the power that it gives to our judges to curb the action of a democratic legislature. Granting the existence of such a power, all judges agree — or say they do — that it should be exercised only when conflict with the Constitution seems very clear; otherwise the opinion of a few judges is substituted for that of the elected representatives of the nation. Yet the justices of the Coolidge era used the Constitution as a last-ditch defense of their laissez-faire notion of an economy free from comprehensive regulation.

We do not complain of their economic views; their fault lay in using their judicial power to force those views on the country. “Courts are not the only agency of government that must be assumed to have capacity to govern,” remarked Stone caustically in one of his dissents. The present judges hold that they will not use the phrases of the Fifth and Fourteenth Amendments as a device to censor legislative regulation of the economy. Today, under recent decisions, the power of the states and the Federal government to regulate public utility rates has been enormously expanded. The Court has largely wiped out a set of judgemade and judge-imposed rules and restrictions which have favored utilities at the expense of the public and made public-utility regulation cumbersome, expensive, and unsatisfactory.

Second, the Court is committed to a broad or liberal interpretation of the constitutional power of Congress “to regulate interstate commerce” so as to give it control over matters in any way impinging on the national economy. Some twenty-eight years ago Congress passed a law forbidding goods made by child labor to be shipped in interstate commerce. The old majority, in the face of the eloquent dissent of Holmes, held that this was an intrusion by Congress into a purely state matter. To be sure, the purpose of Congress was to discourage child labor in the states. But the offending state was using interstate commerce to impose its cheap, child-made goods upon other states. Could not Congress forbid the channels of interstate commerce from being used by one state to the detriment of another? Who could, if not Congress?

“It is not for this Court,” said Mr. Justice Holmes, “to pronounce when prohibition is necessary to regulation, to say that it is permissible against strong drink but not as against the product of ruined lives.” Today the lamentable decision has been swept away. Congress may fix the wages and the hours of workers producing for interstate commerce. How far this power of Congress to regulate internal conditions goes we do not know. But it is certain that every member of the present Court would hesitate to set a constitutional bar to any piece of legislation having any legitimate connection with the national economy.

These are a fair indication of a wholesale change in doctrine, but even more of the pattern of attitudes prevailing in the Court today. We find sympathy to labor in place of the earlier defensive hostility — reversing earlier decisions, the Court in the Hutcheson case practically exempted labor union activity from the coverage of the Sherman Antitrust Act; and state court injunctions against picketing were held to interfere with the workers’ freedom of speech. On the other hand there is more st ringent interpretation of the anti-monopoly laws as against industry; and the Court has allowed greater freedom to state and Federal tax authorities in their hunt for new tax sources. In brief, the Court, whatever the predilection of its several members, has adapted its theory and practice to the concept of an industrialized, state-regulated society with greater benefits for labor and the underprivileged.

2

UNFORTUNATELY this deep-sounding unison is overlaid with a perplexing welter of discord. Its tone has gone from bad-mannered noisiness to settled sullenness. What does the discord signify? What does it foretell concerning the future role of the Court? By some it has been explained as primarily a clash of temperament without any significant general bearing. Professor Powell, the greatest living student of the Court, noted recently that though Black and Frankfurter often dissent, they hardly ever dissent in the company of each other, which arouses suspicion of personal as well as doctrinal disagreements. Rumors of feud drift out of the conference rooms of the marble palace. It is whispered that some justices do not talk to each other; that one or another has hoped to lead the Court — first Frankfurter and now the challenging Black; that Black seeks to wrest dominion by sheer shock of insolence toward his brethren, not excepting the Chief Justice.

The feud and the manner of its waging broke out publicly when in one case Black (who was not assigned to write the majority’s opinion) wrote a special concurring opinion for the sole purpose of reprimanding Frankfurter. In a mild dissent Frankfurter had sought to justify an accepted legal notion as based on “law and morals.” Black, lest, he said, his “silence . . . be understood as acquiescence” in Frankfurter’s views (remember that the latter’s views were expressed in a dissenting opinion!), found it necessary to protest this intrusion of “the writer’s personal views on ‘morals’ and ‘ethics.’” Yet it is impossible to imagine a law functioning in an ethical vacuum. Black perhaps more than anyone else on the Court writes his own ethical assumptions into law.

Clearly the judges have allowed personal rancor to enter the chamber; by tolerating it in themselves and each other they have done disservice to the Court and its great concerns. But whatever its origin, I have become convinced that the cleavage shows a meaning beyond personal discord.

First, we must be prepared to accept that, among nine independent intelligences, differences of attitude and judgment are inevitable. It is hard for the layman to grasp or to tolerate the fact that, just as doctors disagree, so do lawyers; and judges are lawyers in black silk robes, sitting three feet higher than you and I. Out of the infinite web of life there constantly arise situations which the earlier lawgivers have not foreseen. As new problems present themselves in the form of new cases, for the solution the judges must look to general principles which have been couched in terms of old situations — general principles which never quite cover the new, and which are often in conflict with each other at just the juncture where the new situation lies. The training, the intelligence, the predilection of the individual judge will condition his choice from among conflicting principles, his manner of reformulating the chosen principle so as to absorb in its statement the novel case.

I suspect that in the present Court there is the added factor of sectarianism. At best seven of the judges have been deliberately chosen for their avowed devotion to the “liberal” cause. It not seldom comes about that those who start by thinking alike on fundamentals fall into the most violent quarreling over the true bearing of the true gospel, and that some forsake temperance in a jealous eagerness to appear more pure than their fellows.

This is important, for out of such disagreements may grow the fundamental differences of the fut ure; the growth will be accelerated where personal dislike magnifies the difference. When we seek to align the Court on the basis of issues commonly thought to divide “conservatives,” “liberals,” and “radicals,” we appear to be lost in a maze of shifting combinations; and generalization may suffer so many qualifications as to suggest that any alleged cleavage founded in principle is but the shade of a shadow.

Probably most tenable is the hypothesis that there are not two opposite camps, but a determined, tight faction consisting of Black, Douglas, and Murphy (in the order of their firmness), with Rutledge more often than not their convinced adherent. The nature of the Court’s business, as we know, offers a large and legitimate area for difference in opinion, so that the four need only hold together to cash in quite often on the chances of carrying off a fifth to make a majority. This fifth may be Stone or Reed, Frankfurter or Jackson, or even Roberts, clearly the most conservative; or if Rutledge is lost, the remaining three may pick up another by which it will appear that their dissent of four is certainly not entirely willful.

If this factor of outside adherence makes difficulty for the faction theory, it nevertheless does not invalidate it. It shows, of course, that the group’s judgment in any one case is persuasive enough to win the adherence of one who (ex hypothesi) is not a member of the group. But its persistence and the predominant character of its conclusions argue that it operates, whether unconsciously or no, on tenets somewhat other than those which move first the one and then the other justice to vote with it.

It is the thesis of one wing of opinion that Douglas and Black are carrying on the great liberal tradition of Holmes and Brandeis; whereas, by an irony of a type well known to modern historical analysis, Frankfurter, the avowed champion of this tradition, praised and pilloried in its name by public opinion, has become the arch-conservative.

I would suggest another hypothesis for which there is some evidence. The record of Black, Douglas, and Murphy will show hardly a circumstance, for example, where in a controversy between capital and labor, or even between a particular employer and employee, they have not voted for labor or the employee. The point is not simply that they are more “liberal” In this and various other respects than their fellows. To a degree, that may be true, but I doubt that as men their fundamental economic and social views are significantly different from Frankfurter’s. The point is that they will always (let us say, within the limits of the logically possible) construe Constitution, legislation, or common-taw doctrine as compelling decision for the interest they favor. If a patent can be invalidated, a business found guilty of violating the antitrust law, a utility rate lowered, we can usually be sure where they will stand. They profess a great respect for the decisions of administrative bodies. But when the decisions do not further their views, this policy of deference is abandoned. This is evident in their hostility toward the activities of the Interstate Commerce Commission, which they regard as fostering railroad monopoly by discouraging inland water and automobile carrier traffic.

3

CONCERNING the constitutional power of the legislatures, state and national, to regulate our economy, we have noted that there is impressive unanimity. The most fertile field for conflict and division is, and will be, the interpretation of legislation, particularly Congressional. All the justices profess to found their philosophy on the proposition that in a democracy the voice of the people is pre-eminently expressed by the legislature, and that to the judges is allotted the narrow province of applying and enforcing the law in all humility. Yet I suspect that the Black group is unwilling to recognize that legislation is likely to be a compromise between opposing principles. They are very sympathetic to the forward principle, but are somewhat obtuse as to the legislative intention to limit its application by the conservative principle.

Congress in the past (by a law since repealed) imposed double liability on stockholders in national banks; it did not — at least in terms — impose it on shareholders in corporations which owned shares of national banks, though it was well aware of the existence of such corporations. But the Court (with Stone making five) imposed such liability. “If the judicial power is helpless to protect a legislative program from schemes for easy avoidance, then indeed it has become a handy implement of high finance,” said Douglas. It may be harsh, admits Douglas, on innocent purchasers of the holding company’s shares, who did not know of any such liability, but “rules of liability are usually harsh.” Jackson, dissenting, was unable to find any “legislative program” empowering the Court to supplement the legislation.

The curiously improvisational character of the Court’s conclusion is emphasized by the fact that in subsequent legislation known to the Court but not applicable to this case (which arose before the new legislation), Congress had refused to impose double liability. This, I think, is an example of that “judicial legislation” which was so damned when conservative judges were writing it the “wrong” way. In my opinion “judicial legislation” is inevitable and desirable to avoid results which are abhorrent to the conscience of the judges (Black’s disingenuous animadversions about “morals” and “ethics” notwithstanding), but Douglas could hardly purport to be dealing with such a case; and it is to my mind just one more instance of how he will work for the conclusion most in accordance with his personal preferences.

Is the important Southeastern Insurance case yet another instance? Here the government is prosecuting a group of insurance companies for allegedly holding up prices by agreement and so violating the Sherman Antitrust Act. In a four to three decision the Court — Black, Douglas, Murphy, and Rutledge the majority; Frankfurter, Stone, and Jackson the minority; Roberts and Reed disqualifying themselves — held that the activities of the insurance companies, if finally proved as alleged, were subject to the Sherman Act. The decision has caused a great stir among laymen, perhaps because insurance is so universal and so central in the fabric of security. The decision, however, in no way impairs the safety of the individual policyholder and may lessen his insurance bill.

The Court, first, overruling old precedents to the contrary (only Stone raised a doubt at this point), held that insurance carried on across state lines was interstate commerce and, as such, subject to national regulation. It then held that the Sherman Act, condemning in general terms all monopolistic restraints in interstate commerce, was perforce applicable to an alleged insurance monopoly.

As an original question both rulings are clearly sound. Jackson in his dissent made that admission. He argued, however, that during the entire fifty years of the Sherman Act, Congress had assumed that insurance was not subject to the Act, on the basis of Supreme Court decisions that it was not interstate commerce. During those fifty years, elaborate state regulation had intervened. Congress, though urged to do so, had never attempted to interfere with or supplement this regulation; had never specifically adapted the Sherman Act to insurance so as to force the Court to reconsider its ruling that insurance was not commerce. It was this situation which led Jackson to say: “The orderly way to nationalize insurance supervision, if it be desirable, is not by court decision but through legislation. Judicial decision operates on the states and the industry retroactively.” Admitting that the earlier decisions were error, still “a judgment as to when the evil of a decisional error exceeds the evil of an innovation must be based on very practical and in part upon policy considerations,” and “it is the part of wisdom and self-restraint and good government for courts to leave the initiative to Congress.”

Jackson, in other words, is appealing to precedent, but not because he is a “hidebound lawyer” lacking in imagination or social passion. Perhaps it is his long practice with its early beginnings in the small city of Jamestown which has made him eminently the representative of the practical. The present “liberalism ” has developed its dogmatism: “wrong” decisions of the old Court, however much they have become part of the fabric of the law, must be overruled, though the new decision, aside from its vindication of the current notion of doctrinal purity, may produce only confusion and governmental headaches. Jackson is particularly scornful of this species of dogmatism; he is not afraid to buck the new gospel in the name of common sense.

The decision of the majority in the insurance case is not wrong in any legal or logical sense; it may, assuming that the government’s charges of monopolistic rate-fixing are true, produce important savings for the public. Yet in the light of the considerations which moved the dissenting judges to leave the business of reform to Congress, the decision underlines the undeviating zeal with which the Black group expands the judicial power to achieve results thought desirable.

It may be that it is only the degree of its intensity that differentiates Black’s performance (to speak in the name of the group’s leader) from the judicial norm. He would not be great as man or judge who never has been moved by generous passion to bend to his will the refractory material of legislation and of common law. But the judge is pledged to respect for the “law” (to use a perhaps mystical but clearly felt generality); he is ideally aware of it as an authority superior to his own particular purposes.

Recently Fred Rodell has been pleased to bestow on Black the mantle of Holmes. Holmes pioneered the view that a judge must not resist the underlying dynamic of his period; where choice is open to him, he should strive objectively to express that dynamic. But he did not think of this duty as having anything to do with the judge’s personal predilections. His sense of when choice was open was not predetermined by his own conceptions of social desirability. A close study of his judicial career shows how greatly he deferred to precedent as setting limits which made his own will in the matter entirely irrelevant.

Frankfurter has come, I think, to the more or less conservative position of Holmes in this respect after allowing himself in the Hutcheson case a freedom which surely was as great as any taken by the other judges. It may be that in his practice he is too sensitive in an almost personal way to the competing pressures from the Right and the Left, perhaps too concerned with a fear that the very social fabric will be torn asunder by their competition. Yet his general judicial philosophy of realizing progress within the traditional limits of the judicial process is, I believe, a correct position for a judge in our democracy.

The most crucial task of the Court today is the protection of civil liberties, and to this task the Court has brought far-reaching zeal. It has strengthened and extended freedom of speech and of religious worship; it has scrutinized more closely the fairness of trials; it has increased the security of the naturalized citizen. Above all it has, wherever possible, insisted on the equal treatment of the Negro.

All this is valuable work which will fail of its best effects if the Court, itself falls into public discredit. Some loss of credit among conservatives was, of course, inevitable if the Court was to remove the shackles upon legislation imposed by the old Court. But it is just in the measure that its work requires so many breaks with the past that the Court should strive to free its results from personal and factional willfulness. In the popular conception, law is a reign of justice and order resting in objective statement independent of the will of the judges. If this conception exaggerates the extent to which it is possible or desirable to eliminate the personality of the judge, it still expresses one of the dearest, most constructive values of civilization; it feeds a deep well of emotion which gives validity and dynamic force to the judgments of the courts. It is from this source that we would draw the sanction for constitutional liberalism.

In its present conduct the Supreme Court is, to my mind, unnecessarily impairing its credit. Feuding, attack, recrimination, self-vindication, if they provide a mean order of satisfaction to the participants, enable the common enemy to argue that the desire for such satisfaction motivates judicial action. If judgments manifest an almost undeviating adherence to a partisan, political, social, and economic line, they cease to command that credit which the layman attributes to the “law,” and end by calling in question the whole character of the institution. All the judges are wholeheartedly committed to the fulfillment of the promise of liberal democracy. They can make their best contribution by leaving legislation to the legislature and maintaining intact their moral forces for the task of constitutional reform and protection within the limits of the judicial function as embodied in the high tradition of a great court.