The Supreme Court in United States History/Introductory Chapter

by Charles Warren (1868-1954)

THE SUPREME COURT IN UNITED STATES HISTORY

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VOLUME ONE

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INTRODUCTORY CHAPTER

The history of the United States has been written not merely in the halls of Congress, in the Executive offices and on the battlefields, but to a great extent in the chambers of the Supreme Court of the United States. "In the largest proportion of causes submitted to its judgment, every decision becomes a page of history,"^[1] "In not one serious study of American political life," said Theodore Roosevelt at a dinner of the Bar in honor of Judge Harlan in 1902, "'will it be possible to omit the immense part played by the Supreme Court in the creation, not merely the modification, of the great policies, through and by means of which the country has moved on to her present position. . . . The Judges of the Supreme Court of the land must be not only great jurists, they must be great constructive statesmen, and the truth of what I say is illustrated by every study of American statesmanship." The vitally important part, however, which that Court has played in the history of the country in preserving the Union, in maintaining National supremacy within the hmits of the Constitution, in upholding the doctrines of international law and the sanctity of treaties, and in affecting the trend of the economic, social and political development of the United States, cannot be understood by a mere study of its decisions, as reported in the law books. The Court is not an organism dissociated from the conditions and history of the times in which it exists. It does not formidate and deliver its opinions in a legal vacuum. Its Judges are not abstract and impersonal oracles, but are men whose views are necessarily, though by no conscious intent, affected by inheritance, education and environment and by the impact of history past and present; and as Judge Holmes has said: "The felt necessities of the time, the prevalent moral and pohtical theories, intuitions of public policy, avowed or unconscious, even the prejudices which Judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."^[2]

Appointments to the Court, moreover, have not been made from a cloister of juridical pedants, but from the mass of lawyers and Judges taking active parts in the life of the country.^[3] Presidents, in selecting Judges, have been necessarily affected by geographical and political considerations, since it has been desirable that the Court should be representative (so far as practicable) of the different sections of the country and of the leading political parties. The Senate, in rejecting for partisan reasons nominees of eminent legal ability, has more than once influenced the course of history. The character and capacity of counsel taking part in cases have been elements which require consideration, since the arguments of great jurists and great statesmen command an attention and afford an assistance to the Court which may powerfully affect the trend of the law.^[4] The reaction of the people to judicially declared law has been an especially important factor in the development of the country; for while the Judges' decision makes law, it is often the people's view of the decision which makes history. Hence, the effect produced upon contemporary public opinion has frequently been of more consequence than the actual decision itself; and in estimating this effect, regard must be paid to the fact that, while the law comes to lawyers through the official reports of judicial decisions, it reaches the people of the country filtered through the medium of the news-columns and editorials of partisan newspapers and often exaggerated, distorted and colored by political comment. Finally, it is to be noted that Congress, in its legislation enacted as a result of judicial decisions, has always played a significant part in relation to the Court. For all these reasons, the true history of the Court must be written not merely from its reported decisions but from the contemporary newspapers, letters, biographies and Congressional debates which reveal its relations to the people, to the States and to Congress, and the reactions of those bodies to its decisions. Recourse to such evidence of contemporary opinion and criticism of the Court is especially necessary for an understanding of the degree to which opposition to the Court and popular counter-movements have affected the history of the country at different periods. Of the great political revolution of 1800 which destroyed the Federalist Party, the public attitude to- wards the National Judiciary was no small cause. In bringing about the rise of Jacksonian Democracy, the antagonism caused in many States by John Marshall's decisions was a potent factor. The attitude of the Court on questions arising out of the slavery issue was closely connected with the outbreak of the Civil War. The violent Repubhcan onslaught on the Court for its courageous and notable opinions at the end of the War reacted on the whole unfortunate course of Recon- struction. Nothing in the Court's history is more strik- ing than the fact that, while its significant and neces- sary place in the Federal form of Government has always been recognized by thoughtful and patriotic men, nevertheless, no branch of the Government and no in- stitution under the Constitution has sustained more continuous attack or reached its present position after more vigorous opposition. It was, however, inevit- able from the outset that the Court's powers, its jurisdiction and its decisions should be the subject of constant challenge by one political party or the other ; for a tribunal whose chief duty was that of determining between conflicting jurisdictions in a Federal form of Government could not hope to escape criticism, invective, opposition and even resistance.^[5] One interest ing feature of the first century of its existence should be noted—that the chief conflicts arose over the Court's decisions restricting the limits of State authority and not over those restricting the limits of Congressional power. Discontent with its decisions on the latter subject arose, not because the Court held an Act of Congress unconstitutional, but rather because it refused to do so; the Anti-Federalists and the early Republicans assailed the Court because it failed to hold the Sedition Law, the Bank of the United States charter and the Judiciary Act unconstitutional; the Democrats later attacked the Court for announcing doctrines which would sustain the constitutionality of an Internal Improvement bill, a voluntary Bankruptcy bill, a Protective Tariff bill and similar measures obnoxious to them; the Federalists equally attacked the Court for refusing to hold unconstitutional the Embargo Act, and the later Republicans assailed it for sustaining the Fugitive Slave Act. It was in respect to its exercise of a restraining power over the States that the Court met with its chief opposition. That the Federal Judiciary would of necessity be the focus of attack in all important controversies between the States and the Nation was fully recognized by the framers of the Constitution, but it was the essential pivot of their whole plan.^[6] The success of the new Government depended on the existence of a supreme tribunal, free from local political bias or prejudice, vested with power to give an interpretation to Federal laws and treaties which should be uniform throughout the land, to confine the Federal authority to its legitimate field of operation, and to control State aggression on the Federal domain.^[7]

The history of the foundation of the Court in the proceedings of the Federal Convention of 1787 is too well known to need repetition. The initial step in establishing the supremacy of the new Federal Government was taken on July 17, 1787, when Luther Martin of Maryland moved the adoption of the following resolution:

Resolved that the Legislative acts of the United States made by virtue and in pursuance of the articles of Union, and all treaties made and ratified under the authority of the United States shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants—and that the Judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.

And this, in its final form, became the second clause of Article Six of the Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The supremacy of the Nation in its constitutional field of operation being thus established, the next step requisite to the fulfillment of the purposes of the framers of the Constitution was the establishment of a tribunal which should have the power of enforcing throughout the Nation and in the States the supremacy of the Constitution and of the laws so asserted—an organ of Government, which should be, as Bryce has termed it, "the living voice of the Constitution." By the adoption of Sections 1 and 2 of Article III, the framers completed their work in providing that: "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”; and by enumerating the cases to which the judicial power should extend, and the scope of the original and of the appellate jurisdiction of the Supreme Court.^[8] The structure of the National Judiciary being thus outlined, the Convention left to the First Congress the important tasks of settling the composition of the Supreme Court, of erecting inferior Courts, of framing modes of procedure, and—most important of all—of establishing the extent of the Supreme Court's appellate jurisdiction, both with reference to State and inferior Federal Courts. The task thus imposed upon the Congress was of a most delicate nature; for during the long contest over the adoption of the Constitution, after it left the hands of its framers, the Article relating to the Judicial branch of the new Government had been the subject of more severe criticism and of greater apprehensions than any other portion of the instrument.^[9] Elbridge Gerry had complained that there are no well-defined limits of the Judiciary powers; they seem to be left as a bound- less ocean that has broken over the chart of the Supreme Lawgiver." Edmimd Randolph had objected to the lack of limitation or definition of the judicial power. George Mason had said that "the Judiciary of the United States is so constructed and extended as to absorb and destroy the Judiciaries of the several States." Richard Henry Lee had inveighed at length against the powers of the Federal Judiciary. Luther Martin and Patrick Henry had expressed grave fears of the system. On the other hand, the provisions of the Constitution respecting the judicial system had been eloquently supported by Edmimd Pendleton, John Marshall, John Jay, James Wilson, James Iredell, James Madison and by Alexander Hamilton, both in speeches at the State Conventions and in pamphlets written in defense of the proposed new Government.

It was with full comprehension of the diflSculty of its task and of the opposition which it must overcome, that the First Congress imdertook as one of its earliest tasks the completion of the judicial system ; and on April 7, 1789, in the Senate, Oliver Ellsworth of Connecticut, William Paterson of New Jersey, William Maday of Pennsylvania, Caleb Strong of Massachusetts, Richard Henry Lee of Virginia, William Few of Georgia and James Wingate of New Hampshire were appointed a committee to bring in a bill for organizing the Judiciary of the United States. The draft of the proposed bill was made by Ellsworth, who had been a prominent member of the Federal Convention.^[10] The Chairman of the Committee, Lee, who as an Anti-Federalist feared extension of Federal power, was at first inclined to be sanguine over the shape which the bill was taking. "In the Senate a plan is forming for establishing the Judiciary system," he wrote to Patrick Henry. "So far as this has gone, I am satisfied to see a spirit prevailing that promises to send this system out, free from those vexations and abuses that might have been warranted by the terms of the Constitution. It must never be forgotten, however, that the liberties of the people are not so safe under the gracious manner of government as by the limitation of power."^[11] Another Anti-Federalist, however, William Maclay, Senator from Pennsylvania, deplored the fact that the bill " was fabricated by a knot of lawyers", and stated that: "I really fear that it will be the gunpowder-plot of the Constitution. So confused and so obscure, it will not fail to give a general alarm. . . . It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal Courts. The Constitution is meant to swallow all the State Constitutions by degrees; and thus to swallow, by degrees, all the State Judiciaries."^[12] On the other hand, the importance of the bill as a measure designed to enforce the supremacy of the Constitution was fully recognized by the supporters of that instrument. Ellsworth wrote: "I consider a proper arrangement of the Judiciary, however difficult to establish, among the best secur ities the government will have, and question much if any will be found more economical, systematic and eflScient than the one under consideration. Its fate in the House of Representatives, or in the opinion of the public, I cannot determine."^[13] And James Monroe wrote to James Madison: "That (the bill) to embrace the Judiciary will occasion more difficulty, I apprehend, than any other, as it will form an exposition of the powers of the Government itself, and show in the opinion of those who organized it, how far it can discharge its own functions, or must depend for that purpose on the aid of those of the States. Whatever arrangement shall be now made in that respect will be of some duration, which shows the propriety of a wise provision in the commencement."^[14] In the House, fears as to the Federal Judiciary as an instriunent of Federal encroachment on State authority were ex- pressed in the debates over the famous Twenty-Fifth Section which authorized writs of error to the Supreme Court on judgments of State Courts.^[15] "It is much to be apprehended that this constant control of the Supreme Federal Court over the adjudication of the State Coiurts would dissatisfy the people and weaken the importance and authority of the State Judges," said William Smith of South Carolina.^[16] James Jackson of Georgia opposed the Twenty-Fifth Section. "It swallows up every shadow of a State Judiciary… In my opinion, and I am convinced experience will prove it, there will not, neither can there be, any suit or action brought in any State Courts but may under this clause be reversed or affirmed by being brought within the cognizance of the Supreme Court." Fisher Ames and Theodore Sedgwick of Massachusetts, Egbert Benson of New York, and James Madison of Virginia, on the other hand, advocated the proposed system; and Roger Sherman of Connecticut closed the debate by arguing powerfully that the authority of the Federal Courts under this Section was necessary "to guard the rights of the Union against the invasion of the States. If a State Court should usurp the jurisdiction of Federal causes and by its adjudications attempt to strip the Federal Government of its constitutional rights, it is necessary that the National tribunal shall possess the power of protecting those rights from such invasion."

The Judiciary Act was finally enacted on September 24, 1789. It provided for a Supreme Court to consist of a Chief Justice and five Associate Judges; for thirteen District Courts and for three Circuit Courts each to be composed of two Supreme Court Judges sitting with a District Court Judge; it fixed the jurisdiction of the inferior Federal Courts; and it provided for appellate jurisdiction from the State Courts in certain cases presenting Federal questions.^[17] With few essential changes, this great piece of legislation has remained the law of the country to the present day. "The wisdom and forethought with which it was drawn, have been the admiration of succeeding generations," said a Judge of the Supreme Court in 1911. This was probably the most important and the most satisfactory Act ever passed by Congress.^[18] That this commendation was justified is unquestionable. Nevertheless, in considering the effect of the Act upon the history of the Court, attention must be paid to the fact that it received severe criticism from many contemporary lawyers and statesmen. Within a year after its enactment, Attorney-General Edmund Randolph made a lengthy report to the President, urging radical and extensive amendments. The early Judges of the Supreme Court constantly advocated important changes, especially in the provisions of the Act relating to Circuit Court duty.^[19] William Grayson of Virginia wrote to Patrick Henry, immediately after the passage of the Act: "The Judicial Bill has passed, but wears so monstrous an appearance that I think it will be felo-de-se in the execution. . . . Whenever the Federal Judiciary comes into operation, I think the pride of the States will take alarm which, added to the difficulty of attendance from the extent of the district in many cases, the ridiculous situation of the venue, and a thousand and other circumstances, will in the end procure its destruction. The salaries, I think, are rather high for the temper or circumstances of the Union and furnish another cause of discontent to those who are dissatisfied with the Government."^[20] At the same time, John Brown, a Congressman from Kentucky, wrote: "I fear in the administration of it great difficulties will arise from the concurrent jurisdictions of the Federal with the State Courts which will unavoidably occasion great embarrassment and clashing. But it is absolutely necessary to pass a Judiciary Law at this session, and the one which passes is as good, I believe, as we at present could make it. Experience may point out its defects." Another Congressman writing from New York, September 14, said: "The Judicial Bill is now under consideration by Congress. This Department, I dread as an awful Tribunal ... by its institution, the Judges are completely independent, being secure of their salaries, and removable only by impeachment, not being subject to discharge on address of both Houses as is the case in Great Britain."^[21] And William R. Davie, the leader of the Bar in North Carolina, wrote to Judge Iredell, August 2, 1791: "I sincerely hoi>e something will be done at the next session of Congress with the Judiciary Act; it is so defective in point of arrangement, and so obscurely drawn or expressed, that, in my opinion, it would disgrace the composition of the meanest Legislature of the States."

Later attacks upon the Federal judicial system have been largely attributable to the fact that neither of the two great powers which the Supreme Court has exercised in interpreting and maintaining the supremacy of the Constitution were granted in express terms in the instrument itself. For the power to pass upon the constitutional validity of State legislation was conferred by Congress by this Twenty-Fifth Section of the Judiciary Act, in pursuance of the general power of Congress to pass all acts "necessary and proper for carrying into execution . . . all other powers vested by this Constitution in the Government of the United States", and in order to make effective the provision of Article Six, to the end that the Constitution and the Laws of the United States should be the supreme law of the land. And the Court's power to pass on the constitutional validity of Federal legislation was established by decisions of the Court itself, as an inherent and necessary judicial function in ascertaining and interpreting what the finally binding law was.^[22] Yet as Madison said in 1832, a supremacy of the Constitution and laws of the Union "without a supremacy in the exposition and execution of them would be as much a mockery as a scabbard put into the hands of a soldier without a sword in it. I have never been able to see that, without such a view of the subject, the Constitu- tion itself could be the supreme law of the land; or that the uniformity of the Federal authority throughout the parties to it could be preserved; or that, without this uniformity, anarchy and disunion could be prevented." The possession of these powers by the Court, moreover, is vital to the preservation not merely of our form of Government, but of the rights and liberties of the individual citizen. "Its exercise," said Judge Field at the Centennial Celebration of the Court, "is necessary to keep the administration of the Government, both of the United States and of the States in all their branches, within the limits assigned to them by the Constitution of the United States and thus secure justice to the people against the unrestrained legislative will of either the reign of law against the sway of arbitrary power.^[23] In any community, the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property and his liberty constitute one of the most certain tests of the character and value of the government; and the chief safeguard of the individual's right is to be found in the existence of a Judiciary vested with authority to maintain the supremacy of law above the possession and exercise of governmental power. If the result of an infringement of a written Constitution by the Legislature is to be avoided, "there must be a tribunal to which an immediate appeal for redress can be made by any person who is damnified by the action of the Legislature; and the tribunal which affords redress in such case necessarily exercises judicial power, because it declares what is, and what is not, law, and applies what it declares to be law to the facts submitted to its investigation."^[24]

It must be admitted, however, that of the two powers vested in the Court for the enforcement of the supremacy of the Constitution, its power to pass upon the constitutionality of Congressional legislation may fairly be termed of the lesser importance. During the first eighty years, only four Federal statutes were held unconstitutional, of which but two were of any importance; and even if the Court had possessed no power to determine the validity of either of these two, the Mandamus Act in Marbury v. Madison, and the Missouri Compromise Act in the Dred Scott Case, it cannot be said that the course of events would have been fundamentally affected. So with regard to the thirty-two Acts of Congress held unconstitutional between 1869 and 1917, with the possible exception of the decision in the Civil Rights Cases, the integral history of the country would have been little altered had the Court not possessed or exercised its power.^[25] Probably the chief argument in favor of the possession of such power is the lack of uniformity of Federal law which would otherwise result, if each State Court should remain the final arbiter as to the constitutionality of Acts of Congress. An illustration of the unfortunate legal and financial complications and of the serious impairment of the functions of the Federal Government which might arise out of such a condition occurred in 1870, when the Kentucky Courts had held the Legal Tender Act invalid, while the Courts of other States held the contrary.^[26] Nevertheless, on the whole, it is probably true that, as Judge Holmes recently said, "The United States would not come to an end if we lost our power to declare an Act of Congress void."^[27]

If, on the contrary, the Court should be deprived of its other power—that of determining the unconstitutionality of State laws, it is unquestionably true that the successful operation of the Federal system of government would be endangered. "I do think the Union would be imperilled," said Judge Holmes, “if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to National views, and how often action is taken that embodies what the Commerce Clause was meant to end." The power given to the Supreme Court by this (Judiciary) Act," said Chief Justice Taney, "was intended to protect the General Government in the free and uninterrupted exercise of the powers conferred on it by the Constitution, and to prevent any serious impediment from being thrown in its way while acting within the sphere of its legitimate authority."^[28] Its great purpose was to avoid conflict of decision between State and Federal authorities, to secure to every litigant whose rights depended on Federal law a decision by the Federal Courts, and to prevent the Courts of the several States from impairing the authority of the Federal Government; and had the Court not been vested with this power, it may well be doubted whether the National Union could have been preserved. It was not without reason that John C. Calhoun deemed this Section "the entering wedge", destroying, as he believed, "the relation of co-equals and co-ordinates between the Federal Government and the Governments of the individual States. . . . The effect of this," he said, "is to make the Government of the United States the sole judge, in the last resort, as to the extent of its powers. . . It is the great enforcing power to compel a State to submit to all acts. . . . Without it, the whole course of the Government would have been different the conflict between the co-ordinate Governments, in reference to the extent of their respective powers, would have been subject only to the action of the amending power, and thereby the equilibrium of the system been preserved, and the practice of the Government made to conform to its Federal character."^[29] That Calhoun rightly attributed to the operation of this Section the development of the Government on the National rather than on the Federal theory and into a Nation rather than into a Confederacy must be acknowledged by all who read the opinion of Chief Justice Marshall in Cohens v. Virginia—that opinion which has been termed "one of the strongest and most enduring strands of that mighty cable woven by him to hold the American people together as a united and imperishable nation."^[30]

Moreover, it has been through the exercise of this power to pass upon the validity of State statutes, under the Judiciary Act, that the Court has largely controlled and directed the course of the economic and social development of the United States. It is diffi cult to imagine what the history of the country would have been if there had been no Dartmouth College Case on the security of corporate charters; no McCulloch v. Maryland on the right of a State to tax a National agency; no Gibbons v. Ogden on interstate commerce; no Brown v. Maryland or Passenger Cases on foreign commerce; no Craig v. Missouri on State bills of credit; no Charles River Bridge Case on State powers over corporations; no Slaughterhouse Cases on the scope of the Fourteenth Amendment. If it should be answered that, even if this Section did not exist, the question of the validity of a State statute might in some cases have arisen and been determined in suits in the Circuit Courts of the United States, and might have thus reached the Supreme Court from the inferior Federal Courts, this may be admitted; and yet it would have been a slender reed on which to rest the enforcement of the supremacy of the Constitution over conflicting State legislation.^[31]

But while it may be truly said that to the existence of the Twenty-Fifth Section of the Judiciary Act may be assigned the chief part of the influence which the Court has had upon the law and the development of the United States, it must be noted as one of the most significant features in the Court's history that the exercise of its powers under this Section has been the chief cause of attack upon the Court itself and upon its decisions.

That the Court should have succeeded in maintaining itself in the confidence and respect of the people in the face of such constant assault is a remarkable tribute to its ability, integrity, independence, and impartiality, and a sign of popular belief in its possession of those qualities. For as an eminent State Judge has well said: “Judicial decisions upon the rights, powers, and attributes of the General and State Government, wherever the Constitution is silent, will often form a topic of much feeling and interest to the people, and of great moment to the Union. So much so, that it has occurred to my mind, as a peculiar and unanswerable reason, arising out of our system of government, why the American Judiciaries both State and Federal, even more than any other judicial tribunals on earth, should be so constituted as to stand independent of temporary excitement and unswayed by pride, popular opinion or party spirit."^[32] Fully conscious of this necessity, the Court has time and time again set its face firmly against the appeal of popular passions and prejudices, and the temporary cries of the momentary majority. The Judiciary of the United States—independent of party, independent of power, and independent of popularity" was a toast given at a dinner in Washington in 1801%; these words have expressed the aim, and substantially the achievement, of the Court, in the one hundred and twenty years which have since elapsed.^[33] "It is not for Judges to listen to the voice of persuasive eloquence or popular appeal," said Judge Story in the Dartmouth College Case. "We have nothing to do but pronounce the law as we find it, and having done this, our justification must be left to the impartial judgment of our country."^[34] Loose statements by some modern writers on law and sociology to the effect that the "Bench has always had an avowed partisan bias", are not sustained on examination of its history.^[35] Thus, Judges appointed by Jefferson and Madison did not hesitate to join with Marshall in sustaining and developing the strongly Nationalistic interpretation of the Constitution so obnoxious to Jefferson. Judges appointed by Jackson joined with Marshall and Story in supporting the Cherokee Missionaries against Greorgia, in flat opposition to Jackson. The whole Bench appointed by Jackson decided against his policy in relation to the Spanish land claims. Judges appointed by Jackson and Van Buren threw down the gauntlet to the former by issuing a mandamus against his favorite Postmaster-General. In every case involving slavery, anti-slavery Judges joined with pro-slavery Judges in rendering the decisions. The constitutionality of the obnoxious Fugitive Slave Law was unanimously upheld by anti-slavery Whig Judges and by pro-slavery Democrats alike. A Northern Democrat joined with a Northern Whig Judge in dissenting in the Dred Scott Case. President Lincoln's Legal Tender policy was held unconstitutional by his own appointees. The Reconstruction policies and acts of the Republican Party were held unconstitutional by a Republican Bench. The constitutional views of the Democratic Party as to oiu* insular possessions were opposed by a Democratic Judge who joined with his Republican Associates in making up the majority in the Insular Cases. Multiple other illustrations might be cited. In fact, nothing is more striking in the history of the Court than the manner in which the hopes of those who expected a Judge to follow the political views of the President appointing him have been disappointed. While at various periods of extraordinary partisan passion, charges of political motives have been leveled at the Court, it has been generally recognized, when the storms subsided, that the accusations were unwarranted. In fact, it is one of the safeguards of our form of government that the people recognize that the refusal by the Courts to make concessions to expediency or temporary outcry is required for the protection of the rights of the citizen. "Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the Courts," said Alexander Hamilton, "as no man can be sure that he may not be tomorrow the victim of a spirit of injustice by which he may profit today."^[36]

Popular confidence in the strength and integrity of the Court has been further heightened by widespread knowledge of the fact that M all times the Court has received the aid, the support and the criticism of a Bar of the highest ability comprising lawyers from every section of the country; and the fact that, for the first seventy years, the Federal Bar was largely composed of Senators and Representatives served ^to keep the representatives of the people in intimate touch with the proceedings and decisions of the Court. "Upon the lawyer equally with the Judges rests the responsibility for an intelligent determination of causes in the Courts, whether relating to pubUc or to private rights," said Judge Harlan at the Centennial of the Court. "It has been said of some judgments of the Supreme Court of the United States that they are not excelled by any ever delivered in the judicial tribunals of any country. Candor, however, requires the concession that their preparation was preceded by arguments at its Bar, of which may be said, what Mr. Justice Buller observed of certain judgments of Lord Mansfield, that they were of such transcendent power that those who heard them were lost in admiration 'at the strength and stretch of the human understanding.'"

One further factor which has strengthened the Court in popular confidence and which has greatly served to lessen the chances of friction between the component parts of the Federal system of govern ment has been the voluntary limitation upon the exercise of its own power which the Court has adopted as a rule of practice. This limitation which, as a recent Judge has said, "is more than a canon of interpretation, it is a rule of conduct resting upon considerations of public policy", was first set forth by Judge Iredell in 1798, when he stated that, as the authority to declare a statute void "is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case."^[37] This rule, it is to be noted, was first applied only to State statutes, as a means of avoiding friction between the States and the Federal Government. "It is but a decent respect due to the wisdom, the integrity and the patriotism of the Legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt," said Judge Washington in 1827, and Judge Woodbury said in 1848: "It is to be recollected that our Legislatures stand in a position demanding often the most favorable construction for their motives in passing laws, and they require a fair rather than hypercritical view of well-intended provisions in them. Those public bodies must be presumed to act from public considerations, being in a high public trust; and when their measures relate to matters of general interest, and can be vindicated under express or justly implied powers, and more especially when they appear intended for improvements, made in the true spirit of the age, or for salutary reforms in abuses, the disposition in the Judiciary should be strong to uphold them." It was not until the year 1871 that this rule was applied in a case involving an Act of Congress, when in the Legal Tender Cases, Judge Strong stated that "a decent respect for a coördinate branch of the Government demands that the Judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligation of an oath of fidelity to the Constitution. Such has always been the rule." In 1878, Chief Justice Waite stated that "the safety of our institutions depends in no small degree on a strict observance of this salutary rule."

Finally, the Court's retention of popular support has been strengthened by the scrupulous care with which it has refrained from assuming any authority to decide the policy or impolicy of legislation. "No instance is afforded from the foundation of the government, said Judge White in 1904, "where an act which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that, in our constitutional system, the Judiciary was not only charged with the duty of upholding the Constitution, but also with the responsibility of correcting every possible abuse arising from the exercise by the other departments of their conceded authority. So to hold would be to overthrow the entire distinction between the Legislative, Judicial and Executive departments of the Government, upon which our system is founded, and would be a mere act of judicial usurpation. . . . The decisions of this Court from the beginning lend no sup- port whatever to the assumption that the Judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." "If it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the Courts," said Judge Harlan. "No evils arising from such legislation could be more far-reaching than those that might come to our system of government, if the Judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people's representatives."^[38]

While, as thus outlined, the Court has won the general confidence of the people, it may fairly be admitted that criticism has not been entirely dissipated, and that temporary resentment over decisions running athwart the opinions of certain classes or sections of the country leads from time to time to demands for changes in the Judiciary system. It has been contended, and with a certain amount of reason, that the Court should impose a further voluntary limitation on its power, by announcing that it would decline to regard the unconstitutionality of a statute as "plain", "clear", "palpable" or "unmistakable", in any case in which one or more Judges should consider the statute to be valid; the adoption of such a practice would render impossible most of the "five to four" decisions, which have been so productive of lessened popular respect.^[39] It has been suggested that the voluntary elimination or restriction of the now increasing practice of filing dissenting opinions would also tend to strengthen public confidence; on the other hand, such opinions are often of high value in the future development of the law and legislation.^[40] More radical suggestions have been made for Constitutional Amendments establishing an elective Court or a Court appointed for a term of years; but such propositions have never yet found any substantial support, since it is manifest that they could only result in making the Judiciary less independent and more politically partisan. Changes have also been suggested in the direction of restricting the appellate jurisdiction of the Court; but such legislation would result in leaving final decision of vastly important National questions in the State or inferior Federal Courts, and would effect a disastrous lack of uniformity in the construction of the Constitution, so that fundamental rights might vary in differ ent parts of the country. As was conclusively said fifty years ago, when the most serious efforts were made thus to weaken the Court: "If the Judges of the Union are silenced, those of the States will be left entirely uncontrolled. Remove the supervisory functions of the National Judiciary, and these laws will become the sport of local partisanship; upheld in one commonwealth, they will be overthrown in another and all compulsive character will be lost. . . . To restrict their jurisdiction and weaken their moral power is, therefore, to sacrifice in a most unnecessary manner that department of the Government which more than any other will make National ideas triumphant, not only in the legislation of today but in the permanent convictions of the people."^[41] As to the proposition, formerly much advocated, to abolish the Court entirely and to place final power of judicial decision in the United States Senate, no trace of support can now be found.

To the proposal, advanced at various times of intense party passion, that the Court should be increased in number in order to overcome a temporary majority for or against some particular piece of legislation, the good sense of the American people has always given a decided disapproval; even mere partisan politicians see clearly that the employment of such an expedient is a weapon which may be equally used against them by their political opponents and may therefore prove disastrous in the long run; and James Bryce has eloquently set forth the true foundation of the Court's security against such an effort to turn the course of justice: "What prevents such assaults on the fundamental law—assaults which, however immoral in substance, would be perfectly legal in form? Not the mechan ism 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."^[42]

No institution of government can be devised which will be satisfactory at all times to all people. But it may truly be said that, in spite of necessary human imperfections, the Court today fulfills its function in our National system better than any instrumentality which has ever been advocated as a substitute. Very apposite are the sentiments expressed by a lawyer in the anxious days of the Republic, just before the Dred Scott Case, as follows: "Admit that the Federal Judiciary may in its time have been guilty of errors, that it has occasionally sought to wield more power than was safe, that it is as fallible as every other human institution. Yet it has been and is a vast agency for good; it has averted many a storm which threatened jour peace, and has lent its powerful aid in uniting us together in the bonds of law and justice. Its very existence has proved a beacon of safety. And now, when the black cloud is again on the horizon, when the trem bling of the earth and the stillness of the air are prophetic to our fears, and we turn to it instinctively for protection, let us ask ourselves, with all its imagined faults, what is there that can replace it? Strip it of its power, and what shall we get in exchange? Discord and confusion, statutes without obedience, Courts without authority, an anarchy of principles, and a chaos of decisions, till all law at last shall be extinguished by an appeal to arms."^[43]

1. Attorney-General George W. Wickersham, in his address before the Bar of the Court, on the death of Chief Justice Fuller, 219 U. S. xv. Henry Adams' settlement in his Hulortf qf the Untied States (1890), IV, 205, that "history has nothing to do with law except to record the development of legal principles", is singularly inept, for the law as enounced by the Court has made much of the history of the country. See also HictoneaZ Lighte firom Judicial Deeieione, by Edward CahilU MiMgan Law Rewiaw (1906), VI.
2. The Common Law (1881), by Oliver Wendell Holmes, Jr.
3. "While an 'overspeaking Judge is no well-tuned cymbal', neither is an amorphous dummy, unspotted by human emotions, a becoming receptacle for judicial power." McReynolds, J. (diss.), in Berger v. United States (1921), 255 U. S. 43.
4. In Sauer v. New York (1907), 206 U. S. 5S6, McKenna, J. (diss.), said: "The elevated railroad cases get significance from the argument of counsel. Such arguments, of course, are not necessarily a test of the decision, but they may be. The opinion may respond accurately to them." In Bridge Proprietors v. Hoboken etc. Co, (1804), 1 Wall. 516, Miller, J., spoke of a case as one "argued at much length by Mr. Webster, Mr. Sergeant and Mr. Clayton whose names are a sufficient guarantee that the matter was well considered." See also comments on the value of arguments by able counsel in Woods v. Lawrence Co, (1802), 1 Black 386.
5. See Centralization and the Law (1908), by Melville M. Bigelow, 55; William Tudor wrote in 1816 in North Amer. Rev. III, 102: "Whenever any set of men shall entertain designs against the Constitution, either to overwhelm it in the anarchy of simple democracy, or to found on its ruins a usurpation of monarchical power, they will conunence their operations by open or insidious attadcs to weaken and overthrow the Judiciary."
6. Rufus King wrote to Jonathan Jackson, Sept. 3, 1786: "Mr. Madison of Virginia has been here for some time past; he will attend the Convention. He does not discover or propose any other plan than that of investing Congress with full powers for the regulation of commerce foreign and domestic. But this power win run deep into the authorities of the individual States, and can never be well exercised without a Federal Judicial." Mass. Hist. Soc. Proc. (1915-16), XLIX.
7. See The Supreme Court of the United States, Its History and Influence on our Constitutional System (1890), by Westel W. Willoughby; Gordon v. United States (1864), 117 U. S. App. 700-701. "The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the com- plex character of the Government of the United States, which is in part National and in part Federal; where two separate governments exercise certain powers of sovereignty over the same territory, each independent of the other within its ap- propriate sphere of action, and where there was, therefore, an absolute necessity, in order to preserve internal tranquillity, that there should be some tribunal to decide between the Government of the United States and the government of a State, when- ever any controversy should arise as to their relative and respective powers in the common territory. The Supreme Court was created for that purpose."
8. See Muskrat v. United States (1911), 219 U. S. 346.
9. History of the Supreme Court of the United States (1891), by Hampton L. Carson, 107-119.
10. T. Lowther wrote to James Iredell: "Enclosed is a bill (or the establishment of the Judicial system, it was prindpally drawn up by a Mr. Ellsworth of Connecticut, but it is supposed considerable alterations will be made before it passes both Houses. There are not many lawyers in the Senate, but they compose three-fourths of the Representatives." Iredell, II, 260, letter of July 1, 1780.
11. The Letters of Richard Henry Lee (1914), ed. by James C. Ballagh, II, letter of Lee to Henry, May 28, 1780. The bill was reported by Lee, June 12, 1789; was given its second and third readings, June 22, July 7; was debated on July 8, 9, 10, 11; passed the Senate by a vote of 14 to 6 on July 17, Lee voting against it; was sent to the House, July 20, where it was debated from time to time until Sept. 17, when it passed with amendments. The bill was amended and referred in the Senate to a Committee consisting of Ellsworth, Paterson, and Pierce Butler of South Carolina; it was passed by the House again with the Senate changes, Sept. 21, and was signed by President Washington, Sept. 24, 1789.
12. Sketches of Debates in the First Senate of the United States (1890), by William Blaclay. entries of June 29, July 2, 7, 17, 1789.
13. State Trials (1849). by Francis Wharton, letter of Ellsworth to Judge Richard Law, Aug. 7, 1789.
14. Monroe, I, letter of Aug. 12, 1789.
15. The progress of the bill in the House was commented on in the correspondence of Fisher Ames, the talented Federalist Congressman from Massachusetts, as follows: "July 8, 1789, The Judiciary is before the Senate who make progress. Their committee labored upon it with vast perseverance and have taken as full a view of their subject as I ever knew a committee to take. Mr. Strong, Mr. Ellsworth and Mr. Paterson, in particular, have their full share of this merit. Sept. 3, 1789. You will see by the papers what pace we move in the discussion of the Judiciary bill. The question whether we shall have inferior tribunals (ex- cept admiralty courts, which were not denied to be necessary) was very formidably contested. Judge livermore, and ten others, voted against them. You will see in Fenno's Oazette my speechicle on the subject. Sept. 7, 1789. The Judicial slumbers, and when it shall be resumed will probably pass as an experimental law, without much debate or amendment, in the confidence that a short experience will make manifest the proper alterations." Works of Fisher Ames (1854,) I.
16. 1st Cong., 1st Sess., Aug. 29, 1789.
17. The official title of the Chief Justice seems to have varied at different periods of the Court's history. Jay was commissioned under the title of "Chief Justice of the Supreme Court of the United States ", as were Rutledge, Ellsworth, Marshall, Taney, Chase and Waite. Fuller was commissioned as "Chief Justice of the United States." The Constitution mentions the office of Chief Justice only once; in Article One, Section three, relative to impeachments in which it is pro- vided "When the President of the United States is tried, the Chief Justice shall preside." The Judiciary Act of Sept. 24, 1789, provided that the Supreme Court "shall consist of a chief justice and five associate justices." The Act of July 18, 1866, c. 210, for the first time officially used the term "Chief Justice of the United States" providing that "thereafter the Supreme Court shall consist of a Chief Justice of the United States and six associate justices." The Act of April 10, 1869, c. 22, provided that the Court shall "hereafter consist of the Chief Justice of the United States and eight associate justices." The Revised Statutes, Section 673, and the Act of March 3, 1911, c. 231, codifying the laws relating to the judiciary, Section 215, refer to “a Chief Justice of the United States." On the other hand, the statutes relating to the salaries of the Court, viz.: the Act of March 3, 1873, c. 226, the Act of Feb. 12, 1902, c. 547, and the Act of March 8, 1911, c. 231, Section 218, all refer to "the Chief Justice of the Supreme Court of the United States." New England Historical and Genealogical Register (1895), XLIX, 275.
18. Address of Mr. Justice Brown before the American Bar Association, August 20, 1911. As to the history and scope of this Act, see Virginia v. Rives (1880), 100 U. S. 313, 338; Tennessee v. Davis (1880), 100 U. S. 257, especially dissenting opinion of Clifford, J.; United States v. Holliday (1866), 3 Wall. 417. See also Genesis of the Federal Judiciary System, by W. B. Richards, Virg. State Bar Assn. (1904), XVII.
19. See infra, 86-90.
20. Letters and Times of the Tylers (1884), by Lyon G. Tyler, letter of Sept. 29, 1789; Harry Innes Papers MSS, letter to Harry Innes, Sept. 28, 1789.
21. See Oracle of the Day (Portsmouth, N. H.)» quoted in General Advertiser (Phil.), June 9, 1705.
22. Edward S. Corwin in his illuminating book on The Doctrine of Judicial Renew (1914), 17, takes this position that the power was not to be implied from the provisions of either Article III or Article VI of the Constitution, but was "the natural outgrowth of ideas that were common property in the period when the Constitution was framed. . . . We are driven to the conclusion that judicial review was rested by the framers of the Constitution upon certain general principles which in their estimation made specific provision for it unnecessaiy, in the same way as, for example, certain other general principles made unnecessary specific provision for the President's power of removal."
23. John C. Calhoun in the Nullification debate in 1888 said that the power of the Court "had its origin in the necessity of the case. Where there were two or more rules established, one from a higher, and the other from a lower authority, which might come into conflict in applying them to a particular case, the Judge could not avoid pronouncing in favor of the superior against the inferior. It was from this necessity, and this alone, that the power which is now set up to overrule the rights of the States, against an express provision of the Constitution, was derived. It had no other origin. That he had traced it to its true source would be manifest from the fact that it was a power which, so far from being conferred exclusively on the Supreme Court, as was insisted, belonged to every Court, inferior and supe- rior, State and general." 22d Cong., 2d Sess., Feb. 15, 1833.
24. The Supremacy of the Judiciary, by A. Inglis Clark, Hare. Law Rev. (1908), XVII.
25. From the October Term of 1889 to the October Term of 1917, "the Court declared only eighteen Acts of Congress unconstitutional in whole or in part, and but few of them were of such general importance as to call for extended attention." Judicial Control over Legislatures, by J. H. Ralston, Amer. Law Rev. (1920), LIV.
26. See The Fundamental Law and the Power of the Courts, by Herbert Pope, Harv. Law Rev. (1918), XXVII.
27. Address of Judge Oliver Wendell Holmes before the Harvard Law School Asso- ciation on Law and the Court, Feb. 15, 1918. Speeches of Oliver Wendell Holmes (1918). It has been sometimes remarked that the existence of the judicial power has unquestionably tended to cause Congress to evade its own responsibility, and to enact statutes the constitutional validity of which it doubted, relying on the Court to hold them invalid. "There is every reason to think that Legislatures have passed bills, knowing them to be unconstitutional, in order to place the onus of declaring them so on the Courts." Property and Contract in Their Relations to Distribution of Wealth (1918), by Richard T. Ely; The New York Employers Liability Act, by Judge A. A. Bruce, Michigan Law Rev. (1911), IX. In Evans v. Gore (1920), 253 U. S. 245, 248, the Court said: "Moreover, it appears that, when this taxing provision was adopted, Congress regarded it as of uncertain constitutional- ity and both contemplated and intended that the question should be settled by us in a case like this."
28. Commercial Bank of Kentucky v. Griffith (1840), 14 Pet. 58; Missouri v. Andriano (1891), 188 U. S. 497; Virginia v. Rives (1880), 100 U. S. 888; Murdock v. Memphis (1875), 20 Wall. 590.
29. Disquisition on the Constitution and Government of the United States (1851), by John C. Calhoun. 817–840.
30. Marshall, IV, 843.
31. In the first place, suits in the Federal Circuit Courts during the first seventy-six years of our judicial history (until 1866) were practically confined to cases based on diverse citizenship, so that the possibility of testing a State law would depend on its affecting a citizen of another State; in the second place, nothing could prevent a State from disregarding a judgment of the Supreme Court rendered in such a suit, or nullifying it by the simple device of making it a penal offense for a person to conform to the judgment of the Federal Court rather than to the provisions of the State law, and the validity of a conviction in a State Court under such a criminal statute could not have been tested in the Supreme Court.
32. Richardson, J., in City Council v. Weston (1824), 1 Harper (So. Car.) 340.
33. Connecticut Courant, Feb. 9, 16, 1801, account of a dinner to Oliver Wolcott in Washington, Jan. 24, 1801.
34. Paterson, J., in Fowler v. Lindsay (1799), 3 Dallas, 411: “No prejudice or passion, whether of a State or personal nature, should insinuate itself in the administration of justice. . . It is the duty of Judges to declare, and not to make, the law." Moody, J., in Twining v. New Jersey (1908), 211 U. S. 106: "Under the guise of interpreting the Constitution, we must take care that we do not import into the discussion our personal views of what would be wise, just and fitting rules of government to be adopted by a free people, and confound them with constitutional limitations."
35. Brooks Adams in The Theory of Social Revolutions (1913), 47, says: “In fine, from the outset, the American bench, because it deals with the most fiercely contested of political issues, has been an instrument necessary to political success. Consequently, political parties have striven to control it, and therefore the bench has always had an avowed partisan bias." See in answer to this, Judicial Interpretation of Political Theory; A Study in the Relation of Courts to the American Party System (1914), by William B. Bizzell; Is Law the Expression of Class Selfishness, by Francis M. Burdick, Harv. Law Rev. (1912), XXV; see also Politics and the Supreme Court, by Walter D. Coles, Amer. Law Rev. (1898), XXVII. Westel W. Willoughby, op. cit., 99, answering Von Holst's charge in his Constitutional History of the United States that their views on slavery controlled the appointment of Judges prior to 1860, says: "That the judiciary committee (of the Senate) was, for some years, influenced in its action regarding nominations to the Supreme Court by the views of the nominees as to slavery is extremely probable. . . . That, however, the Justices acted in accordance with their conscientious interpretation of the Constitution, a study of the character of the Justices, of the history of the cases, and of the several decisions rendered must, I think, convince the impartial."
36. The Federalist, No. 78.
37. Moody, J., in Employers' Liability Cases (1908), 207 U. S. 463, 509. James Iredell even before he became a Judge of the Court had written, as early as Aug. 26, 1787, to Richard D. Spaight stating that: "In all doubtful cases to be sure, the Act ought to be supported. It should be unconstitutional beyond dispute before it is pronounced such.” Iredell, J., in Calder v. Bull (1798), 3 Dallas, 386, 899; Paterson, J., in Cooper v. Telfair (1800), 4 Dallas, 14, 19; Marshall, C. J., in Fletcher v. Peck (1810), 6 Cranch, 87, 128; and Dartmouth College v. Woodward (1819), 4 Wheat. 518, 625; Washington, J., in Ogden v. Saunders (1827), 12 Wheat. 213, 270; Woodbury, J., in Planters Bank v. Sharp (1848), 6 How. 301. "Every possible presumption is in favor of the validity of a statute and this continues until the contrary is shown beyond a rational doubt." Strong, J., in Legal Tender Cases (1871), 12 Wall. 457, 521; Waite, C. J., in Sinking Fund Cases (1879), 99 U. S. 700, 718. See also Peckham, J., in Nicol v. Ames (1899), 178 U. S. 509, 515; Day, J., in El Paso, etc. Ry. v. Gutierez (1909), 215 U. S. 87, 96. Other Judges have used similar phrases to express the Court's rule of conduct. "As the State tribunals are presumed to do their duty, we should not disturb their decision, even on matters connected with the General Government, unless very manifestly improper or erroneous." Woodbury, J., in Doe v. Eslava (1850), 9 How. 421, 444. The incompatibility "must be clear and strong." Harlan, J., in Interstate Commerce Commission v. Brimson (1894), 154 U. S. 447; Brewer, J., in Fairbank v. United States (1901), 181 U. S. 283, 285.
38. McCray v. United States (1904), 195 U. S. 27, 54; Atkin v. Kansas (1903), 191 U. S. 207, 223.
39. For an admirable discussion of this whole subject, see Constitutional Decisions by a Bare Majority of the Court, by Robert G. Cushman, Mich. Law Rev. (1921), XIX, citing the views of many modern jurists pro and con; see also Five to Four Decisions of the Supreme Court of the United States, by Fred A. Maynard, Amer. Law Rev. (1920), LIV, Dissenting Opinions, Green Bag (1902), XVII.
40. See Dissenting Opinions of Mr. Justice Daniel, by Judge Henry B. Brown, Amer. Law Rev. (1887), XXI; Dissenting Opinions of Mr. Justice Harlan, by Judge Henry B. Brown, ibid. (1912), XLVI; Dissenting Opinions, by V. H. Roberts, ibid. (1905), XXXIX; Great Dissenting Opinions, by Hampton L. Carson, Albany Law Journ. (1894), L. See also, for statement of the value of dissenting opinions, Story, J. (diss.), in Briscoe v. Bank (1887), 11 Pet. 257; White, J. (diss.), in Pollock v. Farmers Loan and Trust Co. (1895), 157 U. S. 429; White, J. (diss.), in Henry v. A. B. Dick Co. (1912), 224 U. S. 1; Moody, J. (diss.), in Employers' Liability Cases (1908), 207 U. S. 463.
41. Nation, Feb. 20. 1868.
42. The American Commonwealth (1888), by James Bryce, I, 269.
43. Amer. Law Reg, (1856), IV, 129. See also American Government and Politics (1910), by Charles A. Beard, 814: "Some obvious lessons seem to come from a dispassionate review of the judicial conflicts which have occurred in our history. Criticism of the Federal Judiciary is not foreign to political contests; no party when it finds its fundamental interests adversely affected by judicial decisions seems to hesitate to express derogatory opinions; the wisest of our statesmen have agreed on the impossibility of keeping out of politics decisions of the Supreme Court which are political in their nature; finally, in spite of the attacks oi its critics and the fears of its friends, the Supreme Court yet abides with us as the very strong tower defending the American political system."