The Constant Quest for An Independent Judiciary
By John Shelby Spong

The Senate of the United States has recently engaged in a protracted process before voting on the President’s nomination of one to sit on the nation’s highest court. It was a highly politicized, televised spectacle designed to influence public opinion for or against Appeals Court Judge Samuel Alito. Lobbying groups joined the battle, spending millions of dollars. The acrimonious debate reflected the deep divisions present in American society today. There was once a time in our history when the Supreme Court was viewed as a non-partisan body that stood majestically above the political fray, adjudicating the law with a dispassionate commitment to the exercise of justice. That time, however, is both long gone and all but forgotten.

Few citizens are aware that between the establishment of the Supreme Court in 1789 and the end of the Civil War in 1865, the Supreme Court declared only two acts of Congress to be unconstitutional. During the next sixty years that number rose but only to six. The election of Franklin D. Roosevelt marked the time when politicizing the Court began in earnest

In his first term (1933-1937) FDR did not get a chance to nominate a single justice to this Court. Of the nine sitting members at that time, Taft had appointed one, Wilson two, Harding two, Coolidge one and Hoover three. Seven of the nine Justices were thus Republican appointees. It is interesting to note, however, that one of Wilson’s appointees, Justice J. C. McReynolds, was considered an ultra-conservative while Justice Benjamin Cardoza, appointed by Herbert Hoover, and Justice Harlan Stone, appointed by Calvin Coolidge, were consistently in the liberal camp, demonstrating that predictions of how justices will vote is an inexact science.

The depression was in full swing when Roosevelt took office requiring, he felt, some dramatic political action. So a series of emergency bills were passed including the National Industrial Recovery Act, the Agricultural Adjustment Act, the National Labor Relations Act, the Tennessee Valley Authority and the Social Security Act. One by one these Roosevelt initiatives were deemed by the Supreme Court to violate the Constitution by invading the powers reserved to the States. The vote on these measures was typically 5 to 4. As these acts fell before the Court and with a ruling on Social Security pending, the President was irate.

The five justices who constituted the majority on these decisions included four traditional hard line conservatives: Justices J. C. McReynolds, George Sutherland, Willis Van Devanter and Pierce Butler. The liberal minority pitted against them was a block of three staunch liberals: Justices Benjamin Cordoza, Harlan Stone and Louis Brandeis. The other two members of this Court, Justice Owen Roberts and Chief Justice Charles Evans Hughes, were considered unpredictable swing votes. However, in each of the crucial tests of New Deal Legislation, Justice Roberts sided with the conservatives and Chief Justice Hughes with the liberals. When the New Deal legislation began to fall, Roosevelt condemned the entire body, labeling them “a group of nine old men.” After his sweeping electoral victory in 1936, in which he carried 46 of the 48 states and won by 10,000,000 votes, FDR made what was probably the biggest mistake in his entire presidency. Misreading his mandate, he had his attorney general prepare the piece of legislation that came to be called “The Court Packing Bill.” This legislation, if passed, would have allowed the president to appoint an additional justice for every justice over 70 years of age. At that time this would have led to six new appointees. An enormous battle ensued. That bill, if enacted, had the potential to disturb forever the balance of power between the three branches of our government. Like all politicians, members of the Roosevelt administration tried to cover their plan with palatable and misleading rhetoric. This was not an attempt to impose its will on the courts, the administration argued; it was simply to relieve the overburdened workload of the justices. When Chief Justice Hughes wrote a letter to Montana’s Democratic Senator Burton Wheeler to be read on the floor of the Senate, in which he stated that neither the Court nor the Justices were overworked or behind in their duties, the facade was blown and the liberal attack on the Court was recognized for what it was.

The tension of that confrontation had its effects anyway, as Justice Owen Roberts, apparently reading the signs of the times, had a conversion and suddenly shifted to the liberal side. Social Security was declared constitutional and shortly thereafter, Justice Van Devanter resigned and Roosevelt appointed the first of his eight presidential nominees. In time he actually did pack the Court, but he did it legally and as called for under the Constitution. Liberals need to appreciate that the partisan atmosphere that surrounds the Court today is the inevitable result of an earlier attempt to politicize the Court begun primarily by New Deal liberals.

Since that time, the President and the Senate have had battles royal over appointees. Some nominees were thought to be too far out of the mainstream, as in the case of Robert Bork. Some were considered unqualified as in the cases of Harold Carswell and Harriet Miers; some were said to lack sufficient character, as was the case with Clarence Thomas. Political debts have been paid off with some appointees. Lines have been drawn in the sand with others.

Beginning in 1954 with the Brown vs. the Board of Education decision outlawing school segregation, the primary attacks on the Court have come from conservatives. The code words used in these attacks have been “legislating from the bench” or not being “strict constructionists.” These phrases were and are little more than the conservative versions of Roosevelt’s dishonest rhetoric, designed to cover the hidden presence of overt racism. Basic human freedoms ought never to be the subject of a legislative vote. That is exactly the responsibility assigned to the courts under the provisions of our Constitution. Protecting the rights of minorities is what keeps a democracy from becoming subject to the tyranny of the mob. Majority rule, which lies at the heart of the democratic experiment, can never be used to violate the rights of minorities. Still the howls of protest arose, primarily from the affected South, as the Court moved deeper into civil rights by supporting people’s right to public accommodations and finally to the ballot box.

Later, when the Court moved to protect the rights of religious minorities from having the will of the religious majority imposed on them in public school settings, religious conservatives raised the battle against the Court to apocalyptic heights. Prayer and Bible reading in public schools were ruled unconstitutional under the ban against State support for any religious system in any arena supported by tax dollars. The Evangelical part of our society now attacked the Court “for taking God out of public schools,” not realizing that this nation had become a religiously pluralistic nation and that neither public schools nor public spaces could be used to promote a particular religious expression. Conservative Christians, accustomed to majority pedestals, could not see that many public schools were actually functioning as Protestant parochial schools.

This crescendo of conservative protests broadened when the Court in 1973 supported a woman’s right to get an abortion in the first trimester of pregnancy and in 2003 when the Court declared that homosexual acts between consenting adults could no longer be criminalized. Once again the Court’s critics used the familiar rhetoric trying to put positive spins on their own sexism and homophobia, a familiar pattern of perfuming prejudices. “Legislating” was again charged by those who did not or could not understand that affirming human rights and protecting minority freedoms under the Constitution is still the primary work of this Court. The fact that today’s Court has had seven of its nine justices appointed by Conservative Republican administrations has not stopped this fierce religious attack on this “liberal activist court.” Even when the Supreme Court halted the counting of presidential ballots in Florida in 2000, overruling the highest court of Florida, on the basis of reasoning so unprecedented as to be revelatory of little more than raw power, as they awarded the White House to George W. Bush, there was no halt in conservative criticism. Probably politics can never be fully removed from the Supreme Court, though we can hope that in the sanctuary of their lifetime appointments this body might seek a level of objectivity and reason that has generally been lost in American politics today.

One final thought: when Judge Alito is confirmed, as I expect he will be, then for the first time in this nation’s history, the court will have a Roman Catholic majority of five justices. Two Jewish justices and two Protestant justices will join them. A few years ago, that would not have bothered me, but religious lines like political lines have also hardened over the years. In the 2004 election, John Kerry, a devout Roman Catholic, stated that while personally opposed to abortion, if elected president, he would not seek to impose his religious convictions on the entire nation. That had seemed to his church a quite acceptable statement when John Kennedy was a candidate in 1960. However, some American Catholic bishops pronounced that attitude unacceptable for a Catholic politician, and suggested that Senator Kerry be refused communion at Catholic altars. Since 2004 the Vatican has become even more conservative and imperialistic. The last thing this nation needs is to blur the lines of separation between Church and State.

History is replete with bitter illustrations of what happens when religious intolerance is expressed politically. I want visible and unmistakable assurances from these Catholic justices that they understand that the citizens of this nation will respect individual faith commitments and individual practices but only until someone in power tries to impose those commitments and practices on the whole nation. I, therefore, watch the hearings with intense interest and expect the Senate to assure me with their votes that my apprehensions are unfounded.