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CHAPTER 24

The Working of the Courts

Those readers who have followed thus far the account given of the federal courts have probably asked themselves how judicial authorities can sustain the functions which America requires them to discharge. It is plain that judges, when sucked into the vortex of politics, must lose dignity, impartiality, and influence. But how can judges keep out of politics, when political issues raising party passions come before them? Must not constitutional questions, questions as to the rights under the Constitution of the federal government against the states, and of the branches of the federal government against one another, frequently involve momentous political issues? In the troublous times during which the outlines of the English Constitution were settled, controversy often raged round the courts, because the decision of contested points lay in their hands. When Charles I could not induce Parliament to admit the right of levying contributions which he claimed, and Parliament relied on the power of the purse as its defence against Charles I, the question whether ship money could lawfully be levied was vital to both parties, and the judges held the balance of power in their hands. At that moment the law could not be changed, because the houses and the king stood opposed: hence everything turned on the interpretation of the existing law. In America the Constitution is at all times very hard to change; much more then must political issues turn on its interpretation. And if this be so, must not the interpreting court be led to assume a control over the executive and legislative branches of the government, since it has the power of declaring their acts illegal?

There is ground for these criticisms. The evil they point to has occurred and may recur. But it occurs very rarely, and may be averted by the same prudence which the courts have hitherto generally shown. The causes which have enabled the federal courts to avoid it, and to maintain their dignity and influence almost unshaken, are the following:

I. The Supreme Court—I speak of the Supreme Court because its conduct has governed that of inferior federal courts—has always declared that it is not concerned with purely political questions. Whenever it finds any discretion given to the president, any executive duty imposed on him, it considers the manner in which he exercises his discretion and discharges the duty to be beyond its province. Whenever the Constitution has conferred upon Congress a power of legislating, the court declines to inquire whether the use of the power was in the case of a particular statute passed by Congress either necessary or desirable, or whether it was exerted in a prudent manner, for it holds all such matters to be within the exclusive province of Congress.

“In measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus Congress, having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid, or a treaty made upon motives and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.” ¹

Adherence to this principle has enabled the court to avoid an immixture in political strife which must have destroyed its credit, has deterred it from entering the political arena, where it would have been weak, and enabled it to act without fear in the sphere of pure law, where it is strong. Occasionally, however, as I shall explain presently, the court has come into collision with the executive. Occasionally it has been required to give decisions which have worked with tremendous force on politics. The most famous of these was the Dred Scott case,² in which the Supreme Court, on an action by a Negro for assault and battery against the person claiming to be his master, declared that a slave taken temporarily to a free state and to a territory in which Congress had forbidden slavery, and afterwards returning into a slave state and resuming residence there, was not a citizen capable of suing in the federal courts if by the law of the slave state he was still a slave. This was the point which actually called for decision; but the majority of the court, for there was a dissentient minority, went further, and delivered a variety of dicta on various other points touching the legal status of Negroes and the constitutional view of slavery. This judgment, since the language used in it seemed to cut off the hope of a settlement by the authority of Congress of the then (1857) pending disputes over slavery and its extension, did much to precipitate the Civil War.

Some questions, and among them many which involve political issues, can never come before the federal courts, because they are not such as are raisable in an action between parties. Of those which might be raised, some never happen to arise, while others do not present themselves in an action till some time after the statute has been passed or act done on which the court is called to pronounce. By that time it may happen that the warmth of feeling which expressed itself during debate in Congress or in the country has passed away, while the judgment of the nation at large has been practically pronounced upon the issue.

II. Looking upon itself as a pure organ of the law, commissioned to do justice between man and man, but to do nothing more, the Supreme Court has steadily refused to decide abstract questions, or to give opinions in advance by way of advice to the executive. When, in 1793, President Washington requested its opinion on the construction of the treaty of 1788 with France, the judges declined to comply.

This restriction of the Court’s duty to the determination of concrete cases arising in suits has excited so much admiration from Tocqueville and other writers, that the corresponding disadvantages must be stated. They are these:

To settle at once and forever a disputed point of constitutional law would often be a gain both to private citizens and to the organs of the government. Under the present system there is no certainty when, if ever, such a point will be settled. Nobody may care to incur the trouble and expense of taking it before the court. A suit which raises it may be compromised or dropped.

When such a question, after perhaps the lapse of years, comes before the Supreme Court and is determined, the determination may be different from what the legal profession has expected, may alter that which has been believed to be the law, may shake or overthrow private interests based upon views now declared to be erroneous.³ These are, no doubt, drawbacks incident to every system in which the decisions of courts play a great part. There are many points in the law of England which are uncertain even now, because they have never come before a court of high authority, or, having been decided in different ways by coordinate courts, have not been carried to the final court of appeal. But in England the inconvenience, should it be great, can be removed by an act of Parliament; and it can hardly be so great as it may be in America, where, since the doubtful point may be the true construction of the fundamental law of the Union, the president and Congress may be left in uncertainty as to how they shall shape their course. With the best wish in the world to act conformably to the Constitution, these authorities have no means of ascertaining before they act what, in the view of its authorized interpreters, the true meaning of the Constitution is. Moved by this consideration, seven states of the Union have by their constitutions empowered the governor or legislature to require the written opinions of the judges of the highest state court on points submitted to them.⁴ But the president of the United States can only consult his attorney general,⁵ and the houses of Congress have no legal adviser, though to be sure they are apt to receive a profusion of advice from their own legal members.⁶

III. Other causes which have sustained the authority of the court by saving it from immersion in the turbid pool of politics, are the strength of professional feeling among American lawyers, the relation of the bench to the bar, the power of the legal profession in the country. The keen interest which the profession takes in the law secures an unusually large number of acute and competent critics of the interpretation put upon the law by the judges. Such men form a tribunal to whose opinion the judges are sensitive, and all the more sensitive because the judges, like those of England, but unlike those of continental Europe, have been themselves practising counsel. The better lawyers of the United States do not sink their professional sentiment and opinion in their party sympathies. They know good law even when it goes against themselves, and privately condemn as bad law a decision none the less because it benefits their party or their client. The federal judge who has recently quitted the ranks of the bar remains in sympathy with it, respects its views, desires its approbation. Both his inbred professional habits, and his respect for those traditions which the bar prizes, restrain him from prostituting his office to party objects. Though he has usually been a politician, and owes his promotion to his party, his political trappings drop off him when he mounts the supreme bench. He has now nothing to fear from party displeasure, because he is irremovable (except by impeachment), nothing to hope from party favour, because he is at the top of the tree and can climb no higher. Virtue has all the external conditions in her favour. It is true that virtue is compatible with a certain bias of the mind, and compatible also with the desire to extend the power and jurisdiction of the court. But even allowing that this motive may occasionally sway the judicial mind, the circumstances which surround the action of a tribunal debarred from initiative, capable of dealing only with concrete cases that come before it at irregular itervals, unable to appropriate any of the sweets of power other than power itself, make a course of systematic usurpation more difficult and less seductive than it would be to a legislative assembly or an executive council. As the respect of the bench for the bar tends to keep the judges in the straight path, so the respect and regard of the bar for the bench, a regard grounded on the sense of professional brotherhood, ensure the moral influence of the court in the country. The bar has usually been very powerful in America, not only as being the only class of educated men who are at once men of affairs and skilled speakers, but also because there has been no nobility or territorial aristocracy to overshadow it.⁷ Politics have been largely in its hands, and must remain so as long as political questions continue to be involved with the interpretation of constitutions. For the first sixty or seventy years of the Republic the leading statesmen were lawyers, and the lawyers as a whole moulded and led the public opinion of the country. Now to the better class of American lawyers law was a sacred science, and the highest court which dispensed it a sort of Mecca, towards which the faces of the faithful turned. Hence every constitutional case before the Supreme Court was closely watched, the reasonings of the Court studied, and its decisions appreciated as law apart from their bearing on political doctrines. I have heard elderly men describe the interest with which, in their youth, a famous advocate who had gone to Washington to argue a case before the Supreme Court was welcomed by the bar of his own city on his return, how the rising men crowded round him to hear what he had to tell of the combat in that arena where the best intellects of the nation strove, how the respect which he never failed to express for the ability and impartiality of the Court communicated itself to them, how admiration bred acquiescence, and the whole profession accepted expositions of the law unexpected by many, perhaps unwelcome to most. When it was felt that the judges had honestly sought to expound the Constitution, and when the cogency of their reasoning was admitted, resentment, if any there had been, passed away, and the support which the bar gave to the Court ensured the obedience of the people.

That this factor in the maintenance of judicial influence proved so potent was largely due to the personal eminence of the judges. One must not call that a result of fortune which was the result of the wisdom of successive presidents in choosing capable men to sit on the supreme federal bench. Yet one man was so singularly fitted for the office of chief justice, and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favouring Providence. This was John Marshall, who presided over the Supreme Court from 1801 till his death in 1835 at the age of seventy-seven, and whose fame overtops that of all other American judges more than Papinian overtops the jurists of Rome or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the government as the living voice of the Constitution. No one vindicated more strenuously the duty of the Court to establish the authority of the fundamental law of the land, no one abstained more scrupulously from trespassing on the field of executive administration or political controversy. The admiration and respect which he and his colleagues won for the Court remain its bulwark. The traditions which were formed under him and them have continued in general to guide the action and elevate the sentiments of their successors.

Nevertheless, the Court has not always had smooth seas to navigate. It has more than once been shaken by blasts of unpopularity. It has not infrequently found itself in conflict with other authorities.

The first attacks arose out of its decision that it had jurisdiction to entertain suits by private persons against a state.⁸ This point was set at rest by the Eleventh Amendment; but the states then first learnt to fear the Supreme Court as an antagonist. In 1801, in an application requiring the secretary of state to deliver a commission, it declared itself to have the power to compel an executive officer to fulfill a ministerial duty affecting the rights of individuals.⁹ President Jefferson protested angrily against this claim, but it has been repeatedly reasserted, and is now undoubted law. It was in this same case that the Court first explicitly asserted its duty to treat as invalid an act of Congress inconsistent with the Constitution. In 1805 its independence was threatened by the impeachment of Justice Chase, the aim of the Republican (Democratic) party then dominant in Congress being to set a precedent for ejecting, by means of impeachment, judges (and especially Chief Justice Marshall), whose attitude on constitutional questions they condemned. The acquittal of Chase dispelled this danger; nor could John Randolph, who then led the House, secure the acceptance of an amendment to the Constitution which he thereupon proposed for enabling the president to remove federal judges on an address of both houses of Congress. In 1806 the Court for the first time pronounced a state statute void; in 1816 and 1821 it rendered decisions establishing its authority as a supreme court of appeal from state courts on “federal questions,” and unfolding the full meaning of the doctrine that the Constitution and acts of Congress duly made in pursuance of the Constitution are the fundamental and supreme law of the land. This was a doctrine which had not been adequately apprehended even by lawyers, and its development, legitimate as we now deem it, roused opposition. The Democratic party which came into power under President Jackson in 1829, were specially hostile to a construction of the Constitution which seemed to trench upon states’ rights,¹⁰ and when in 1832 the Supreme Court ordered the state of Georgia to release persons imprisoned under a Georgian statute which the court declared to be invalid,¹¹ Jackson, whose duty it was to enforce the decision by the executive arm, remarked, “John Marshall has pronounced his judgment: let him enforce it if he can.” The successful resistance of Georgia in the Cherokee dispute¹² gave a temporary, though only a temporary, blow to the authority of the Court, and marked the beginning of a new period in its history, during which, in the hands of judges mostly appointed by the Democratic party, it made no further advance in power.

In 1857 the Dred Scott judgment, pronounced by a majority of the judges, excited the strongest outbreak of displeasure yet witnessed. The Republican party, then rising into strength, denounced this decision in the resolutions of the convention which nominated Abraham Lincoln in 1860, and its doctrine as to citizenship was expressly negatived in the fourteenth constitutional amendment adopted after the War of Secession.

It was feared that the political leanings of the judges who formed the court at the outbreak of the war would induce them to throw legal difficulties in the prosecution of the measures needed for reestablishing the authority of the Union. These fears proved ungrounded, although some contests arose as to the right of officers in the Federal army to disregard writs of habeas corpus issued by the Court.¹³ In 1868, having then become Republican in its sympathies by the appointment of new members as the older judges disappeared, it tended to sustain the congressional plan of reconstruction which President Johnson was endeavouring to defeat, and in subsequent cases it has given effect to most, though not to all, of the statutes passed by Congress under the three amendments which abolished slavery and secured the rights of the Negroes. In 1866 it refused to entertain proceedings instituted for the purpose of forbidding the president to execute the Reconstruction Acts.

Two of its later acts are thought by some to have affected public confidence. One of these was the reversal, first in 1871, and again, upon broader but not inconsistent grounds, in 1884, of the decision, given in 1870, which declared invalid the act of Congress making government paper a legal tender for debts. The original decision of 1870 was rendered by a majority of five to three. The Court was afterwards changed by the creation of an additional judgeship,¹⁴ and by the appointment of a new member to fill a vacancy which occurred after the settlement, though before the delivery of the first decision. Then the question was brought up again in a new case between different parties, and decided in the opposite sense (i.e., in favour of the power of Congress to pass legal tender acts) by a majority of five to four. Finally, in 1884, another suit having brought up a point practically the same though under a later statute passed by Congress, the court determined with only one dissentient voice that the power existed.¹⁵ This last decision excited some criticism, especially among the more conservative lawyers, because it seemed to remove restrictions hitherto supposed to exist on the authority of Congress, recognizing the right to establish a forced paper currency as an attribute of the sovereignty of the national government. But be the decision right or wrong, the reversal by the highest court in the land of its own previous decision may have tended to unsettle men’s reliance on the stability of the law; while the manner of the earlier reversal, following as it did on the creation of a new judgeship and the appointment of two new justices, both known to be in favour of the view which the majority of the court had just disapproved, though apparently not appointed for that reason, disclosed a weak point in the constitution of the tribunal which may some day prove fatal to its usefulness.

The other misfortune was the interposition of the court in the presidential electoral dispute of 1877.¹⁶ The five justices of the Supreme Court who were included in the electoral commission then appointed voted on party lines no less steadily than did the senators and representatives who sat on it. A function scarcely judicial, and certainly not contemplated by the Constitution, was then for the first time thrown upon the judiciary, and in discharging it the judiciary acted exactly like nonjudicial persons.

Notwithstanding this occurrence, which after all was quite exceptional, the credit and dignity of the Supreme Court stand very high. No one of its members has ever been suspected of corruption, and comparatively few have allowed their political sympathies to disturb their official judgment. Though for many years before 1909 every president has appointed only men of his own party, and frequently leading politicians of his own party,¹⁷ each new-made judge has left partisanship behind him, while no doubt usually retaining that bias or tendency of his mind which party training produces. When a large majority of judges belong to one party, the other party regret the fact, and welcome the prospect of putting in some of their own men as vacancies occur; yet the desire for an equal representation of both parties is based, not on a fear that suitors will suffer from the influence of party spirit, but on the feeling that when any new constitutional question arises it is right that the tendencies which have characterized the view of the Constitution taken by the Democrats on the one hand and the Republicans on the other, should each be duly represented.

Apart from these constitutional questions, the value of the federal courts to the country at large has been inestimable. They have done much to meet the evils which an elective and ill-paid state judiciary inflicts on some of the newer and a few even of the older states. The federal Circuit and District judges, small as are their salaries, are in most states individually superior men to the state judges, because the greater security of tenure induces abler men to accept the post. They exercise a wider power of changing the jury than most states allow to their judges. Being irremovable, they feel themselves independent of parties and politicians, whom the elected state judge, holding for a limited term, may be tempted to conciliate with a view to reelection. Plaintiffs, therefore, when they have a choice of suing in a state court or a federal court, frequently prefer the latter; and the litigant who belongs to a foreign country, or to a different state from that in which his opponent resides, may think his prospects of an unbiased decision better before it than before a state tribunal. Nor is it without interest to add that criminal justice is more strictly administered in the federal courts.

Federal judgeships of the second and third rank (Circuit and District) have been hitherto given to the members of the president’s party, and by an equally well-established usage, to persons resident in the state or states where the Circuit or District Court is held. In 1891, however, a Republican president appointed two Democrats to be judges of the new Circuit Court of Appeals, and placed several Democrats on the (temporary) Private Land Claims Court. Cases of corruption are practically unknown, and partisanship, or subservience to powerful local interests, though sometimes charged, is infrequent. The chief defects have been the inadequacy of the salaries, and the insufficiency of the staff in the more populous commercial states to grapple with the vast and increasing business which flows in upon them. So too, in the Supreme Court, arrears have so accumulated that it is now more than three years from the time when a cause is entered till the day when it comes on for hearing. Some have proposed to meet this evil by limiting the right of appeal to cases involving a considerable sum of money; others would divide the Supreme Court into two divisional courts for the hearing of ordinary suits, reserving for the full court points affecting the construction of the Constitution.

One question remains to be put and answered.

The Supreme Court is the living voice of the Constitution,¹⁸ that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as someone has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.

To discharge these momentous functions, the Court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.

Does it possess, has it displayed, this strength and stability?

It has not always followed its own former decisions. This is natural in a court whose errors cannot be cured by the intervention of the legislature. The English final Court of Appeal always follows its previous decisions, though high authorities have declared that cases may be imagined in which it would refuse to do so. And that court (the House of Lords) can afford so to adhere, because, when an old decision begins to be condemned, Parliament can forthwith alter the law. But as nothing less than a constitutional amendment can alter the law contained in the federal Constitution, the Supreme Court must choose between the evil of unsettling the law by reversing, and the evil of perpetuating bad law by following, a former decision. It may reasonably, in extreme cases, deem the latter evil the greater.

The Supreme Court feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed. Of course, whenever the law is clear, because the words of the Constitution are plain or the cases interpreting them decisive on the point raised, the court must look solely to those words and cases, and cannot permit any other consideration to affect its mind. But when the terms of the Constitution admit of more than one construction, and when previous decisions have left the true construction so far open that the point in question may be deemed new, is a court to be blamed if it prefers the construction which the bulk of the people deem suited to the needs of the time? A court is sometimes so swayed consciously, more often unconsciously, because the pervasive sympathy of numbers is irresistible even by elderly lawyers. A remarkable example is furnished by the decisions (in 1876) of the Supreme Court in the so-called Granger cases, suits involving the power of a state to subject railways and other corporations or persons exercising what are called “public trades” to restrictive legislation without making pecuniary compensation.¹⁹ These decisions evidently represent a different view of the sacredness of private rights and of the powers of a legislature from that entertained by Chief Justice Marshall and his contemporaries. They reveal that current of opinion which now runs strongly in America against what are called monopolies and the powers of incorporated companies.

The Supreme Court has changed its colour, i.e., its temper and tendencies, from time to time, according to the political proclivities of the men who composed it. It changes very slowly, because the vacancies in a small body happen rarely, and its composition therefore often represents the predominance of a past and not of the presently ruling party. From 1789 down till the death of Chief Justice Marshall in 1835 its tendency was to the extension of the powers of the federal government and therewith of its own jurisdiction, because the ruling spirits in it were men who belonged to the old Federalist party, though that party fell in 1800, and disappeared in 1814. From 1835 till the War of Secession its sympathies were with the doctrines of the Democratic party. Without actually abandoning the positions of the previous period, the Court, during these years when Chief Justice Taney presided over it, leant against any further extension of federal power or of its own jurisdiction. During and after the war, when the ascendency of the Republican party had begun to change the composition of the Court, a third period opened. Centralizing ideas were again powerful: the vast war powers asserted by Congress were in most instances supported by judicial decision; the rights of states while maintained (as in the Granger cases) as against private persons or bodies, were for a time regarded with less favour whenever they seemed to conflict with those of the federal government. In none of these three periods can the judges be charged with any prostitution of their functions to party purposes. Their action flowed naturally from the habits of thought they had formed before their accession to the bench, and from the sympathy they could not but feel with the doctrines on whose behalf they had contended. Even on the proverbially upright and impartial bench of England the same tendencies may be discerned. There are constitutional questions, and questions touching what may be called the policy of the law, which would be decided differenty by one English judge or by another, not from any conscious wish to favour a party or a class, but because the views which a man holds as a citizen cannot fail to colour his judgment even on legal points.

The Fathers of the Constitution studied nothing more than to secure the complete independence of the judiciary. The president was not permitted to remove the judges, nor Congress to diminish their salaries. One thing only was either forgotten or deemed undesirable, because highly inconvenient, to determine, the number of judges in the Supreme Court. Here was a weak point, a joint in the Court’s armour through which a weapon might some day penetrate. Congress having in 1801, pursuant to a power contained in the Constitution, established sixteen Circuit Courts, President Adams, immediately before he quit office, appointed members of his own party to the justiceships thus created. When President Jefferson came in, he refused to admit the validity of the appointments; and the newly elected Congress, which was in sympathy with him, abolished the Circuit Courts themselves, since it could find no other means of ousting the new justices. This method of attack, whose constitutionality has been much doubted, cannot be used against the Supreme Court, because that tribunal is directly created by the Constitution. But as the Constitution does not prescribe the number of justices, a statute may increase or diminish the number as Congress thinks fit. In 1866, when Congress was in fierce antagonism to President Johnson, and desired to prevent him from appointing any judges, it reduced the number, which was then ten, by a statute providing that no vacancy should be filled up till the number was reduced to seven. In 1869, when Johnson had been succeeded by Grant, the number was raised to nine, and presently the altered court allowed the question of the validity of the Legal Tender Act, just before determined, to be reopened. This method is plainly susceptible of further and possibly dangerous application. Suppose a Congress and president bent on doing something which the Supreme Court deems contrary to the Constitution. They pass a statute. A case arises under it. The Court on the hearing of the case unanimously declares the statue to be null, as being beyond the powers of Congress. Congress forthwith passes and the president signs another statute more than doubling the number of the justices. The president appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms his appointments. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones; the statute is held valid; the security provided for the protection of the Constitution is gone like a morning mist.

What prevents such assaults on the fundamental law—assaults which, however immoral in substance, would be perfectly legal in form? Not the mechanism of government, for all its checks have been evaded. Not the conscience of the legislature and the president, for heated combatants seldom shrink from justifying the means by the end. Nothing but the fear of the people, whose broad good sense and attachment to the great principles of the Constitution may generally be relied on to condemn such a perversion of its forms. Yet if excitement has risen high over the country, a majority of the people may acquiesce; and then it matters little whether what is really a revolution be accomplished by openly violating or by merely distorting the forms of law. To the people we come sooner or later: it is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.