Thursday, June 25, 2020

Not a Supreme Court, but a Supreme Legislature

I think Edmund Burke only got it half right when he said: "Those who don't know history are doomed to repeat it." I would add: "and they will have no idea of why what is happening is happening." Case in point as Reuters recently reported: "The U.S. Supreme Court on Monday declined to take up a series of cases seeking to expand gun rights . . ." Thus the Supreme Court is no longer a Court, but instead a Super-Legislature made up of nine (9) unelected, tenured for life, justices. The Framers of our Constitution would be appalled that the Court had become a second, superior legislature. So, dear reader, come with me on a brief history lesson to understand how this fundamental change in the separation of powers came about that brought us to where we are today.

Since he first entered public life, William Howard Taft – the 27th President of the United States (1909–1913) – really
wanted to be Chief Justice of the United States Supreme Court.1 In 1921, courtesy of President Harding, Taft received that appointment.

As early as 1908, Taft was seeking a new and limited role for the Court he would ultimate guide into its present-day incarnation: a Supreme Court with: “jurisdictional limitations, either in amount in controversy or in the subject matter of suits,” or by “discretionary writ of certiorari.”2  Taft was in the minority calling for these radical changes in a court that was essentially the one envisioned by the founding fathers – a pedigree that few in Congress were willing to tamper with. “Congress was reluctant to reform many aspects of the federal judicial system because it viewed the Judiciary Act of 1789 as the implementation of the Framers' vision of an independent and robust judiciary.”3

Indeed, in 1910, then Chief Justice Edward White, whom Taft had appointed in 1910, refused to seek congressional action to change the jurisdiction of the Supreme Court recognizing that such change would: “break down the separation of the political branches of government from the judiciary.”4 As soon as Taft opened his first term as Chief Justice in 1921, he formed a committee of three other Justices to draft legislation to radically change the  Supreme Court’s jurisdiction.5   In February of the following year, Taft enlisted the support of the American Bar Association by publishing articles in support of his Committee’s proposed legislation.

No previous legislative proposal had proposed to make the Supreme Court a purely discretionary court of appeal.6  To Congress he promised that petitions to invoke such discretion would be given “the most careful consideration,” and that only petitions that were “frivolous” or addressed to principles of law that were “well settled.” would be summarily denied7.  In essence, Taft’s argument was similar to that of the scorpion in the fable of the scorpion and the frog: “Trust Me”.8

In testimony before Congress in support of what was now known as the “Judges’ Bill”, Taft rejected arguments that the bill gave the Supreme Court “too wide discretionary power” instead again promising that each petition received by the Supreme Court would be “carefully determined by each member of the Court” and “discussed and voted on.”9 Otto von Bismarck’s maxim that: “Laws are like sausages, it is better not to see them being made”, was never proven more true than by what happened next.  “Almost without discussion”, on February 2, 1925, the House passed the bill.10 The Senate passed the bill with only one vote in opposition and President Coolidge signed it into law on February 13, 1925.11 

William Howard Taft now had the prime seat on and the "discretionary jurisdiction" Supreme Court he had been seeking for twenty years.  The results would be a profound change from the judiciary envisioned by the Founding Fathers. In Article III, those Founding Fathers had spelled-out the appellate jurisdiction of the Supreme Court: “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  But was “discretionary jurisdiction” and “exception” or a “regulation” that Congress was empowered to make? In the Judiciary Act of 1925, Congress changed “shall” to “may”: “A final judgment or decree in any suit in the highest court of a State . . .may be reviewed by the Supreme Court upon a writ of error.”12 A similar section was made applicable to appeals from the federal district and circuit courts.

Chief Justice Marshall would be mortified for his vision – and that of the Founding Fathers – of the Supreme Court deemed it “treason”13 to fail to decide a case within the Court’s jurisdiction. No one would challenge the Constitutionality of this radical change from a court of mandatory jurisdiction to a court of discretionary jurisdiction – and hence a de facto super-legislature without electoral control – for over seventy five years.

But the story of that challenge, by me, must wait for another day.

1 Henry F. Pringle, The Life and Times of William Howard Taft, (2d ed. 1964), note 73, at 102.
2 Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Columbia Law Review. 1643, 1644 (Nov. 2000), note 12, at 1661 n.74.
3 Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 Indiana Law Journal 153, 171 (2003).
4 David H. Burton, Taft, Holmes, and the 1920s Court: An Appraisal (1998), note 92, at 117.
5 Hartnett, supra, at 1663.
6 Hartnett, supra, note 12, at 1666.
7 William Howard Taft, Three Needed Steps of Progress, 8 American Bar Association Journal 36 (Jan. 1922).
8 A scorpion and a frog meet on the bank of a stream and the scorpion asks the frog to carry him across on its back. The frog asks, “How do I know you won't sting me?” The scorpion says, “ Trust me, because if I do sting you, I will die too.” The frog is satisfied, and they set out, but in midstream, the scorpion stings the frog. The frog feels the onset of paralysis and starts to sink, knowing they both will drown, but has just enough time to gasp “Why?” Replies the scorpion: “Its my nature...”
9 William Howard Taft, Possible and Needed Reforms in the Administration of Justice in Federal Courts, 8 American Bar Association Journal 601, 603 (Sept. 1922).
10 Hartnett, supra, at 1695.
11 Hartnett, supra, at 1704.
12 43 Stat. 936, Chapter 229, §237.
13 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)


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