The Charlotte News

Friday, June 13, 1941


Site Ed. Note: "The New Court" refers to the sixth, seventh and eighth appointments by FDR since his first in Hugo Black in fall, 1937, the first year of his second term, all occurring in just 45 months. In this latter instance he was able to appoint three justices for two vacancies because of his elevation from the existing Court of Harlan Fiske Stone, appointed originally as Justice in 1925 by Calvin Coolidge, to replace the retiring Charles Evans Hughes as Chief. The other retiree, James McReynolds, was one of the last, along with Hughes, of the "old men" who most regularly blocked New Deal programs, such as the National Recovery Act, as an unconstitutional exercise of executive power or unconstitutional transfer of power by the legislative branch to the executive. (See, re the retirement of McReynolds, "A Chance for Amends", January 28, 1941, and "From the Past", January 23, 1941) Of the two new appointees, Robert Jackson and James Byrnes, only Jackson, usually conservative, would leave any lasting mark on the Court, staying until his death in 1954, in the meantime serving as chief counsel for the United States at the Nuremberg trials after the war (and also as the Justice for whom future Justice and then in 1986, Chief, William Rehnquist served as law clerk).

Jackson, then Attorney General, had been considered for the post of Chief, but Roosevelt instead decided to elevate Stone. When Stone died in 1946, Truman considered Jackson again for the post of Chief, along with Hugo Black. The two had become bitter personal enemies, however, and each declared his intent to resign should the other be appointed Chief. To avoid this controversy, Truman instead appointed Fred Vinson to replace Stone.

Despite Jackson's usual identification with conservatism, one of his most notable decisions was that in West Virginia State Board of Education v. Barnette, 319 US 624 (1943), striking down, on First Amendment free speech grounds, a statute making it mandatory for students to salute the flag. The case effectively reversed, albeit on different grounds, the controversial decision of Minersville School District v. Gobitis, 310 US 586 (1940), which had rejected freedom of religious belief to premise a right of Jehovah's Witnesses to refuse to salute the flag and recite the Pledge of Allegiance in the face of a law compelling it in schools. (The more recent case involving the contested use, based on freedom of religion and the Establishment Clause, of the words "under God" in the Pledge of Allegiance, Elk Grove Unified Sch. Dist. v. Newdow, ____ US ____ (2004), held only that the non-custodial parent bringing the suit on behalf of his student daughter lacked standing, and thus did not reach the merits of the case, reversing therefore the Ninth Circuit's holding in that particular case that the Pledge, as stated with the words "under God", violated the First Amendment, but neverthless still leaving viable, in a proper case where the party has standing, the issue as to whether the Pledge is constitutional.)

The other new Justice, Byrnes of South Carolina, would stay only a year, departing in 1942 to return to the Administration for service in the war effort, serving first as director of economic stabilization, then, in 1943, as director of war mobilization, ultimately becoming Harry Truman's Secretary of State in 1945, and finally Governor of South Carolina from 1951 to 1955. His only notable decision was that in Edwards v. California, 314 US 160 (1941), unanimously striking down a statute which was used to bar indigents entry to the State of California. The case held the validity of the statute to be cognizable under the Commerce Clause of the Constitution and violative of the inherent constitutional right of travel; Justice Jackson in concurrence opined that interstate travel is a privilege embraced by the Fourteenth Amendment's Privileges and Immunities Clause.

Roosevelt's ninth and last appointee would be Wiley Rutledge in 1943, to replace Byrnes.

Thus, the nine FDR appointees were to seven seats plus the elevation of Stone to Chief and his replacement as Justice, eight seats in all. (Setting aside the one year of Byrnes's tenure, however, four of the FDR-appointed Justices, Jackson, Rutledge, Stone, and Frank Murphy, each died early and served an everage of only eight years apiece. Only Stanley Reed, serving 19 years, Felix Frankfurter, serving 23 years, Black, serving 34 years, and William O. Douglas, serving 36 years, made a long-lasting imprint on the Court.) Justice Owen Roberts, appointed by Hoover in 1930, was the only holdover Justice from prior to FDR who stayed until after FDR's death, retiring in 1945, affording Truman his first appointee in Harold Burton, completing then the entire complement of the Court, save the original appointment of Stone, who would die in 1946, giving Truman the appointment of Fred Vinson as the new Chief, making the Court all Democrat, though by no means all liberal, for the first time in its history.

But that had come in reaction to a long tenure the other way about. When Roosevelt's second term began in 1937, the composition of the Court was two Democratic appointees, McReynolds and Louis Brandeis, both by Wilson, and seven Republican appointees, Stone, Chief Justice Hughes, (originally appointed as Justice by Taft and, having resigned in 1916 to run against Wilson for the presidency, reappointed by Hoover in 1930 to replace Taft, the only former President to serve on the Court, who had been appointed by Harding as Chief in 1921), Willis Van de Vanter, appointed by Taft, George Sutherland and Pierce Butler, both by Harding, Roberts and Benjamin Cardozo, also appointed by Hoover.

Thus, while FDR's ill-fated Court-Packing Plan of 1937 was a dismal failure both in terms of passage by Congress and public relations, in actual effect, it did raise to public awareness the lock of Republican thinking on the Court which had pervaded unabated for two decades; and by that very raising to consciousness of the political nature of the Court, it did probably tend to accelerate resignations of the old guard, even if Brandeis and Cardozo were liberals, with Stone, Roberts, Butler, and sometimes Hughes, tending at times more toward moderation than conservatism during the New Deal years.

As we have pointed out before, since the thirty years following the Civil War, the composition of the Supreme Court has never been so lop-sided to one party's advantage for so long as that at present, with seven Republican appointees and two Democratic appointees, even if two of the Republican appointees are decidedly moderate to liberal in their views. At least that seven to two majority has been continually extant since 1975, at one point, for two years between 1991 and 1993, being 8 to 1 Republican. The fact that President Carter became the only four-year President never to receive the opportunity to make an appointment contributed heavily to this status, plus of course the fact that, by the beginning of 2009, Republicans will have controlled the White House for 28 of the previous 40 years. In other words, in the last forty years, there have been only two appointments to the Supreme Court by a Democrat, both by Clinton.

The only comparable period in the country's history came after 1861 when Republicans occupied the White House exclusively, except for Andrew Johnson's four years and the two separate terms of Grover Cleveland, until 1913 with the election of Woodrow Wilson. In that interim of 52 years, Johnson got no appointments while Cleveland, including a Chief Justice, got fully four, albeit to only three seats. Thus, though a comparable period to the present in both length and degree of Republican sway over appointments, even then, the Republican lock on the Supreme Court was diluted by the end of the two terms of Cleveland, during which the composition went from 9-0 Republican at the beginning of his first term, 1885-89, to 6-3 by the end of the second separate term, 1893-97, where it remained for the next thirteen years.

The Court had been increased to ten members between 1863 and 1865, when the composition included five Lincoln appointees; then, after Lincoln's assassination, with two resignations of prior Democratic appointees, in 1865 and 1867, reduced to eight by the Republican Congress to prevent the unpopular Democrat Andrew Johnson from exercising an appointment.

Thus, from 1865 until 1914, the composition was at least 5-3 or 6-3 Republican, with the period 1870 until 1896 being at least 7-2 Republican. From 1896 until 1909, the composition returned to a steady 6-3. From 1910 to 1914, conservative Chief Justice Edward White was the only Democratic appointee to the Court, having been originally appointed by Cleveland as Justice, but even he had been elevated to Chief by Republican Taft in 1910. Including White, by the time Wilson left office, the composition was 5-4 Republican, including among the three appointees by Wilson, the conservative McReynolds.

With that continuing history of Republican manipulation of the Court since the end of the Civil War, is it any wonder that the Court came to be called by 1937, the "nine old men"? Is it any wonder that FDR sought the packing plan to expand the membership to fifteen?

Yet, since the events of 1968-1969, when the Democratic segregationists in the South joined forces with Republicans to filibuster the elevation by Lyndon Johnson of his friend and former counsel Abe Fortas to Chief to replace the retiring Earl Warren, allowing ultimately Nixon to appoint Warren Earl Burger in 1969 as Chief, the Court has been decidedly conservative in its majority. Warren had been appointed by Eisenhower in 1953, but despising Nixon, and seeing Nixon's election likely in 1968, had announced his resignation from the Court just before the start of the 1968 fall term. The filibuster of Fortas, in part based on his liberal decisions, in part based on his friendship and advice to Johnson while sitting on the Court, in part because of a stipend paid him for a summer teaching position while on the Court, caused his nomination to be withdrawn. The trend toward conservatism was thus started.

It was accelerated when the tempest in a teapot which had been brewed after Fortas's nomination as Chief, was stirred again the following year when it was revealed by Life that he received an honorarium from a foundation of a former client, then indicted, of $20,000 as part of an annual lifetime payment schedule. Though common at the time for justices to receive such outside income, the hue and cry prompted his resignation from the Court in 1969, giving Nixon another quick appointment. (At the time, too, Congressman Gerald Ford was busy engineering a campaign, for political reasons, to impeach William O. Douglas.) This second Nixon appointment, however, ran into trouble as two Southern conservative nominees, Clement Haynsworth and G. Harrold Carswell, were rejected by the Senate in quick succession, before Harry Blackmun was finally confirmed in 1970. Haynsworth of South Carolina had run into opposition regarding alleged ethical violations from insider stock trading and his conservative record on civil rights and labor; Carswell of Florida had an abysmal record on civil rights and also was considered a mediocre Federal District Court Judge, with the highest reversal rate in his circuit. By contrast, Blackmun of Minnesota, though thought conservative and close in his thinking to fellow Minnesotan Burger, was easily confirmed. Although his initial voting confirmed the "Minnesota Twin" perception of Blackmun, by 1973 when he delivered the opinion in Roe v. Wade, his decisions and voting began increasingly to show liberal tendencies.

Regardless, the appointment of Blackmun by Nixon would swing the composition back to 5-4 Republican in 1970 for the first time since 1962. And with the resignation of the last of the FDR appointees, Hugo Black in 1971 and William O. Douglas, in 1975, the composition would become 7-2 Republican, where, except for the 8-1 majority from 1991-93, it has remained since.

Prior to that, the Court had swung to a 5-4 Republican appointee majority for the first time since 1939 in 1958 with the appointment of Potter Stewart. With the appointment in 1962 of Byron White by President Kennedy to replace Charles Whittaker, an appointee of Eisenhower, however, the 5-4 majority of appointments swung back to the Democrats until 1970.

To track the Court by Party appointments, however, as we have pointed out previously, does not tell the true full story of the way the Court delivers its opinions: there are plentiful examples of conservative Democrats, Edward White, for one instance, Robert Jackson, Sherman Minton, Fred Vinson, and Byron White for other instances; and an equal number of liberal to moderate Republicans, most notably Earl Warren, William Brennan, and John Harlan, appointed by Eisenhower, as well as Harlan's grandfather of the same name appointed by Rutherford B. Hayes, Oliver Wendell Holmes, Benjamin Cardozo, Harlan Stone, Harry Blackmun, and, more moderate than liberal, but nevertheless solidly moderate, present Justices Stevens and Souter and former Justice O'Connor, replacing respectively FDR appointee Douglas, and Eisenhower appointees Brennan and Stewart.

Installment 11 of Out of the Night is here. Jan, observing along the way, for instance, the Columbo courier onboard ship selling ebony toy elephants and bundles of gaudy shawls to the sailors and mates, now seeks in 1925-26 to convert India and Indonesia to Communism, the latter on the premise that Japan would be emboldened by the perception of weak native rule to seek a take-over, which in turn would lead the British to intervene, resulting in a war between two capitalist countries, all to the advantage of mother Russia.

Perhaps, from that comes some flavor of Hitler's thinking 15 years later in 1941 with regard to Japan's planned move south to the same region in response to the invasion by Germany of Russia on June 22, in part to get Japan, the United States and Britain tied down into a war in the Pacific, thereby diluting the strength of both Britain and the United States with respect to the Atlantic and Mediterranean, leaving Hitler more room in which to operate against Russia, to enable his access to the oil reserves of the Middle East, by which then to resume his attack on Britain and gain control finally of the entire Atlantic--the critical chip for his final goal of world domination.

A little more on potash, to go with "Eyewash", is here. A twenty-mule team will open your eyes alright.

And, did you know that the superstition surrounding Friday the 13th supposedly derives from there having been twelve disciples and Jesus at the Last Supper, together with the fact of the crucifixion having been on a Friday? Whether that means that to those whose superstitiosity runs strongly with regard to this date, Jesus is considered bad luck, we don't know. But that's the stupidity and irrationality of superstition for you. In any event, it was Friday the 13th there in 1941, and it's here again in 2008. So, we shall go out and hunt us up some black cats to let cross our path and some ladders under which to walk.

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