Threatened Palladium
By D. W.
BROGAN IT is just twenty-one years since the 'reform' or `packing' of the United States Supreme Court by Franklin D. Roosevelt became obviously a lost cause. Only a few months after the greatest electoral victory in American history, the ap- parently omnipotent President tripped over one of the most granite-like barriers in the American political system, the reverence of most Americans for the Supreme Court. The firmness of the barrier had been hidden by the long grass that had grown Lip round and on the Court in the Twenties and early Thirties. The Court had set itself against a great many changes that the American people had, electorally, decided that they wanted. It had also set itself against an increasingly large body )t informed legal opinion which criticised its rnposition on Congress of standards of political Propriety that derived from the private political views of the members. They acted, as Justice Holmes declared in a fainous dissent, as if the Fourteenth Amendment had enacted `Mr. Herbert Spencer's Social Statics.' The antics of the majority )t the Court not only alienated 'liberals'; they, from time to time, moved even so conservative k figure as Chief Justice Taft to protest and the most blistering comment on Court usurpation ::ame from the eminent academic lawyer Justice stone, whom Coolidge had made Attorney-General and who was to end up as Chief Justice on the nomination of FDR. NeVertheless, the Court survived the public and reported private perfor- mances of Justice McReynolds, and the irony of academic jurists. (`Are you the fellow who teaches 'he young men in your school that the Supreme Court justices are fools?', so McReynolds is sup- posed to have accosted the young Dean of a famous law school. 'No, we let them find out for themselves.') But hostility, irony, learned criticism, political passion beat in vain on the majestic citadel of the rule of law under the Constitution.
The whirligig of time is at its old work and the Court is again threatened. It is threatened, indeed, not in its membership; there is no proposal to swamp the dangerous judges who at present occupy the bench of American Themis. But their jurisdiction is threatened and from a very different quarter than in 1937. For easily the most pas- sionate enemies of the present Court are 'con- servatives' (using this ambiguous term in the American loose and often highly inappropriate way). It is Senator Jenner of Indiana who heads the attack and there were many who, when the late Senator McCarthy was alive, preferred him to his sourer and more fanatical colleague. Now that Joe has gone, Mr. Jenner upholds the banner of the unreformed McCarthyites and his attack on the Court is, among other things, a tribute to the dead tribune. As for Mr. Butler of Maryland,. he got into the Senate after one of the dirtiest election campaigns in modern American history by imputing tenderness towards 'Commies' to the very rich, very conservative and, it was thought, absolutely entrenched Senator Tydings, one of the Senators who, by the irony of history, had been unavailingly 'purged' by FDR and one of the stoutest opponents of the Roosevelt court- packing Bill.
If the attack on the Court had no more sup- port than comes from Messrs. Jenner and Butler and the dwindling lunatic fringe they represent, the present rumpus could be dismissed as the last kick of a dying cause, the salvation of the United States from delivery by treachery into the hands of the Soviet Union. Messrs. Jenner and Butler could be left in the dim obscurity that now hides Messrs. Cohn and Shine or left to retirement like Mr. Scott McLeod, ambassador to the Republic of Ireland, known to some as 'the copper's nark.' Indeed, Mr. Jenner has announced he is not going to run for re-election this year. It is not going to be a good year for Republicans, anyway, and Indiana is far from being ,a safe Republican State. Senator Butler doesn't count seriously and Mary- land is slipping back to its traditional allegiance. But—and this is the important point—the Senate Judiciary Committee has favourably 'reported out' the Jenner-Butler Bill and the crimes of the Court will certainly be shouted to high heaven and, it is possible, its powers curbed. How come?
The most significant support for the Bill, not merely for its contents but for its spirit, comes from the South. For to the Southerners, more and more embattled and less and less frightened by federal gestures towards racial equality, the great crime of the Court was the desegregation decision and the spirit behind that decision is what is being punished in the new Bill. For the Court, if it did not 'make a shambles of established, ingrained law,' certainly reversed itself with com- plete candour and it did so by using arguments that excite the horror of old-fashioned lawyers in the South—and some other lawyers everywhere, Above all, the Southern lawyers and still more the Southern politicians object to the intrusion of federal power into the regulation of the State educational systems and to the use of 'sociological arguments.' Why is equal but separate education a denial of the premisses of the Bill of Rights and the Fourteenth Amendment? Because if it is separate, it can't be equal. To meet members of the other race at school is now one of the legal rights of the American Negro, a right that is being effectively denied him in nearly all Southern States. And who sayS that equality and separation are incompatible? Sociologists. It is impossible to convey the contempt with which this word is uttered—an old-fashioned don could not match it. And in the South, at any rate, 'Jewish' is often put before 'Sociologist,' and 'Communist' is quite often implied. Whether the Court should have fallen into the habit of taking notice of mere fact and mere inference from mere fact and descend from the pure nether of law has been a subject of controversy since the famous Brandeis brief before the First World War. But the Court does notice mere fact and mere sociological theory and the South hasn't forgiven it.
But how do the provisions of the Bill help the South? They allow it to express its hurt feel- ings, which is quite a lot. But they do more than that. For they deny the right of the Supreme Court to review cases of the refusal of admission to the State Bar. They reverse the Court decision that where Congress has legislated in a field (like that Of sedition), the States are debarred from legislating. This decision killed a number of vigorously patriotic statutes and freed a number of people convicted under them. Under the pro- posed legislation, States would be debarred from legislation only if Congress specifically so legis- lated. And who can see Congress denying a sovereign State the right to ferret out and punish the termites who are notoriously eating away at the foundations of the American way of life? Who indeed?
And who can be confident that Southern States will not use these restored powers to punish law- yers who get the reputation of being 'Nigger lovers,' by putting obstacles in the way of bodies like the much-hated NAACP (National Associa- tion for the Advancement of Coloured People)? Already all over the Deep South there is a grow ing impression that it is unhealthy for a Negro to claim all the rights that the Court and even Congress lavishes on him. His 'civil rights' are, for many a semi-literate field hand, a luxury that he daren't claim. And his spokesmen, the smart and subversive lawyers, many of them Negroes, many of them Jews, had better look out. It may be that the mere pleasure of slapping down the Court is the main motive for Southern support of the Bill. But there are gnod, practical reasons too why the devotees of 'white supremacy' should rally to the Jenner-Butler banner.
The third provision, that Congress should have an unlimited power of investigation, that a witness should not be able to refuse to answer a question because he declares it is irrelevant to any legiti- mate ground of congressional inquiry, involves all the pride of Congress. Every section and interest in Congress has, at some time or other, abused the investigative power, and since Ameri- cans have an inadequate sense of privacy anyway, the objection to miscellaneous prying may not strike much lire in the average citizen's breast.
It is much too early to say what will happen. The Department of Justice, leading lawyers, some pugnacious senators are already on record against the Bill. But that it could be reported out for favourable consideration is a sign not only of Southern resentment, but of the survival of that conviction that traitors are about that produced, in the States, investigators beside whom McCarthy was a courteous, cautious and candid statesman. The Senator must be tossing hopefully in his grave as the lunatic fringe in the North and their Southern allies advance to attack the Court.
The assailants cannot win without getting allies of a more respectable type. Perhaps the zeal for protecting the Negro has run its course and many Northern politicians will be tepid in protecting the Court. Perhaps some Republicans still resent the fact that it is a Republican Chief Justice who, by his desegregation nonsense, has prevented them from holding the gains made by Eisenhower in the once-solid South. Perhaps Congress will express resentment of the narrow majorities by which the Court has created the present body of constitutional law. No great harm, it can be argued, will be done if Congress enacts what an impressive Court minority has declared to be the true sense of the Constitution anyway. It is pos- sible that the boldness of the Court has alienated a great body of public opinion, as powerful as, though not the same as, that alienated between 1921 and 1936. The Supreme Court building bears on-its facade the inscription 'Equal Justice Under Law.' Is it to be amended to read, 'Equal but Separate'? I think it unlikely, but Chief Justice Warren must have moments of anxiety as the storm blows louder.
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