Re: Increasing The Size Of The Supreme Court

August 1, 2007

Re: Increasing The Size Of The Supreme Court.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Over the years I have found that the letters to the editor of The New York Times are often very cogent, sometimes a lot more cogent than op ed pieces that caused them to be written. One also notices that it is common for there to be several letters, four or five, on one side and perhaps only one letter on the other. How this ratio arises is mysterious. Does it reflect the ratio of letters received by the Times on one side and the other? Does the radio reflect what the pertinent editor believes rather than the ratio of letters received on one side or the other? Who knows?

A few days ago, on July 30th, the Times carried no fewer than eight letters responding to a July 26th op ed piece by a historian named Jean Edward Smith. Smith had made a suggestion as to what should be done if the current Supreme Court continues on its merry way, if it continues to follow what so many see as a conservative, even right wing, agenda. Citing six historical instances when the size of the Supreme Court had been increased or decreased, sometimes for momentous reasons such as ensuring an antislavery, pro union majority during the Civil War or ensuring a majority that would approve the issuance of paper money after Grant was elected, and one instance when an increase had been attempted but had failed due to Presidential duplicity -- FDR’s court packing plan -- Smith suggested that the Democrats could increase the size of the Court to protect liberal values if they win the presidency and Congress in 2008. This writer has previously suggested the same, although I lacked Smith’s historical knowledge of some of the previous instances.

Though Smith teaches in West Virginia, this writer happens to have met him because he was interviewed on my one hour book television show with regard to his 2001 book entitled Grant. In that interview he was responsible for one of the more dramatic episodes ever to have occurred on the show, which occurred when he was describing the incredibly moving formal surrender ceremony which occurred three days after Appomattox, when the Army of Northern Virginia stacked its arms and furled its flags in a formal act of surrender to the Army of the Potomac. This was what Joshua Lawrence Chamberlin called The Passing of the Armies; the descriptions one reads of it make it seem far more dramatic than, say, the movie so many of us have seen of the surrender of the Japanese on the battleship Missouri at the end of World War II. For true drama, one should read about the passing of the armies. It is hard to describe it orally to someone without choking up a bit. Smith was deeply moved when he described it on the TV show.

Be all this as it may, what surprised me about the letters to the editor responding to Smith were the uniformity and even stridency of the opposition to his suggestion. Seven of the letters were against him, even one from a person who said Smith was “my old thesis supervisor” but went on to call his suggestion “simplistic.” Some of the seven might fairly be described as brutal to one extent or another, and only one seemed to favor his suggestion (which to reiterate personal guilt, is one I too have made).

A couple of the ideas that were repeated in the letters struck me as quite uninformed or worse. Though expressed in sometimes varying language, fundamentally the basis of the opposition is that advocating an increase in the size of the Court is a reprehensible way of attempting to obtain a Court that will uphold principles and values one holds dear instead of casting them aside. Very relatedly, it is said that there is no right to have one’s own values triumph in the Supreme Court because “the very purpose of a written Constitution is to insulate certain bedrock principles and protections from being undermined by the popular values of the times,” values which can change.

When one considers this argument, it falls to the ground. Should there not have been an increase in the size of the Court if absence of an increase would have resulted in pro slavery or anti union decisions in the midst of the Civil War? Should there not have been an increase if a lack of increase would have resulted in the continued vitality of a then recent decision outlawing paper money -- the kind of money we use today? Should Roosevelt not have attempted his court packing plan if the price of lack of attempt would have been, as so many think, continued evisceration of the New Deal by the Supreme Court? To put these questions is to answer them: the argument in the letters is preposterous.

How about the idea that one has no right to have one’s own views adopted by the Court, especially views which may prove temporary? Well, just what do the letter writers think the Republican Presidents have been doing since Nixon took office. They have been nominating Justices who will carry out their right wing principles, and have now gotten to the point where one more hard right Republican appointment would enable them to drive all other principles from the field.

Nor are the right wing’s principles and values enshrined as holies of holies in the Constitutional book. Where is it written in the Constitution, one would like to know, that money is free speech, so that vast campaign contributions -- read bribes and graft -- which are wrecking our political system, are beyond regulation or ban? This view is a pure judicial invention, while one could think that attempts to create a fair political contest are consonant with the long term values of this country. Likewise, where is it written in the Constitution that corporations are “persons” who therefore receive the protections of the 14 Amendment and are thereby enabled to perpetrate enormous evil when this is to their economic benefit? This doctrine too is a pure judicial invention, and contrary to the views of those who wrote the 14th Amendment. It is an invention of Justices who lock, stock and barrel reflected the mercenary, anti human ideas of the Gilded Age. And, in a statutory inversion that bothers the hell out of me, where in the statute books is it written that the antitrust laws should be gutted by ideas that eviscerated long standing rules against price fixing or by ideas that give pampered treatment to the mergers, monopolies and oligopolies that wield such overwhelming power in this country? This evisceration is not the product of long standing principles, but of right wingers and their Justices who have successfully sought in recent decades to destroy long lasting principles and values.

There was one other notion which surfaced a few times in the letters to the editor. This is that life tenure is the real flaw, and is causing the current Supreme Court to be out of step with the times. Along this line, it was suggested that perhaps tenure should be limited to 10 or 14 or 16 years.

Well, maybe. But, on the other hand, some of the greatest justices in American history were on the Court and made great contributions for 20 to 35 years. The first Marshall, the second Marshall, Douglas, Black until he got hardening of the mental arteries in his last few years, Brandeis, Brennan, Stevens. Justices like this cause one to think that limited tenure might not always be such a hot idea. On the other side of it, it’s also true that sometimes lifelong tenure was an enabler for Justices who did great evil that might have been elided by limited tenure. Justices like Taney, Field, some of the four Horsemen of the 1920s and 1930s, Frankfurter and Rehnquist came to mind in this respect.

As a bottom line on all this, upon analysis one would have to say that the often bitter opposition to Smith’s suggestion that surfaced in the letters was pretty much uninformed or, to use a word used by his old advisee, “simplistic.” Indeed, one can hardly help wondering whether the letters came from right wingers who like things just as they are, thank you very much. Well, that suspicion is probably unfair because it may be false. What is not unfair or false is to say that the letters represent a historically uninformed, antichange, pro status quo conventional wisdom, an ideological genre that is all too common in this country and is used in nearly every political field. Those who practice the genre of historically ignorant conventional wisdom that fails to consider alternative notions think they are supporting the best in American life when in reality they are promoting the worst. Viet Nam anyone? Iraq anyone? 