Charles Warren

“ 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 common- wealth, they will be overthrown in another and all compulsive character will be lost. ”

“ Finally, it is to be noted that Congress, in its legislation enacted as a residt 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. ”

“ Considering the judicial system as the chief pillar upon which our National Government must rest, I have thought it my duty to nominate, for the high offices in that department, such men as I conceived would give dignity and lustre to our National character, and I flatter myself that the love which you bear to our country and a desire to promote the general happiness will lead you to a ready acceptance of the enclosed commission which is accompanied with such laws as have passed relative to your office. ”

“ Our poor, starving invalids have at length some provision made for them by Congress; and as the distresses of many of them are urgent in the extreme, it is to be hoped that not a moment's delay will be made by the public officers who are directed to settle their accounts; for although men who are accustomed to plentiful tables do not perhaps know it, it is nevertheless a melancholy truth that a few days fasting would kill not only a feeble, war-worn veteran, but even a hearty well-fed member of Congress or head of a department. ”

“ 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. ”

“ So crude is our Judiciary system, so jealous are State Judges of their authority, so ambiguous is the language of the Constitution that the most probable quarter from which an alarming discontent may proceed is the rivalship of these two orders of Judges. ... Many severe experiments, the result of which upon the public mind cannot be foreseen, await the Judiciary; States are brought into Courts as defendants to the claims of land companies and of individuals; British debts rankle deep in the hearts of one part of the United States ”

“ They stated that "it is a principle important to freedom that, in government, the Judicial should be distinct from, and independent of, the Legislative department", and they held that the business directed by the Act was not of a judicial nature. "These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary, either to the obvious direction of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again." ”

“ 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. ”

“ Alexander White of Virginia said: "I would rather the Judiciary should decide the point because it is more properly within their department"; and again: "I imagine the Legislature may construe the Constitution with respect to the powers annexed to their department, but subject to the decision of the Judges." It remained, however, for Elbridge Gerry, who later became one of the strongest of the Anti-Federalists, to assert most clearly that: "The Judges are the constitutional umpire on such questions. ... We are not the expositors of the Constitution. ”

“ See also a letter from a citizen of Delaware describing the failure of Judges Iredell and Wilson to attend a Federal Circuit Court in that State: "Most people know that these gentlemen get very handsome salaries and they know also from the sweat of whose brows it comes; they know more than this, they know whose right it is to call them to account for their malpractices. The Government will be found expensive enough under the most economical administration. But to lavish the time and property of the citizens unnecessarily is what they cannot nor will not submit to." ”

“ Should the Chief Justice be appointed, we shall lose an excellent man whose talents are peculiarly fitted for the place he fills, without rendering any great service to the United States; and a very good man will be extremely mortified. The Chief Justice, now 66 years of age, cannot long be an active member of the Court, and he has new habits and new modes of legal decision to acquire. ”

“ It is alarming to find so many Members of Congress sworn into the Federal Court at its first sitting in New York. The question then is whether it is proper that Congress should consist of so large a proportion of Members who are sworn attomies in the Federal Courts ; or whether it is prudent to trust men to enact laws who are practising on them in another department. Let common sense answer. If Congress does consist of practising Attorneys, the laws enacted may, in a great measure, depend on the particular causes such individuals may have to manage in the Judiciary ”

“ 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. ”

“ After the adoption of the Constitution, the probable encroachment of the Federal Courts and extension of their powers had been apprehended as a certain cause of friction between the Federal Government and the States ; and five days after the enactment of the Judiciary Act in 1789, William Grayson of Virginia had written to Patrick Henry that "whenever the Federal Judiciary comes into operation, I think the pride of the States will take alarm." ”

“ But when those impeachment mongers are asked how any law is to be declared unconstitutional, they tell us that nothing less than a general convention is adequate to pass sentence on it—as if a general convention could be assembled with as much ease as a committee of stock jobbers. ”

“ 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 ”

“ At the end of this first year, 1790, Attorney-General Edmund Randolph in a report to Congress urging changes in the Judiciary Act also advocated abolition of this Circuit duty, saying: "Those who pronounce the law of the land without appeal ought to be pre-eminent in most endowments of the mind. Survey the functions of a Judge of the Supreme Court. He must be a master of the common law in all its divisions, a Chancellor, a civilian, a Federal jurist and skilled in the laws of each State. ”

“ It is interesting to note that the Anti-Federalists were equally pleased when, in 1792, President Washington curbed the power of Congress by vetoing a statute apportioning Congressmen, on the ground that it was unconstitutional. "This Act of decision, firmness and independence," wrote James Monroe to John Breckenridge, "has presented a ray of hope to the desponding, in and out of the republican party. He inspires men with a confidence that the government contains within itself a resource capable of resisting every encroachment on the publick rights." ”

“ 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. ”

“ 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. ”

“ That the Court should have succeeded in maintain- ing 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 pos- session 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 Govern- ment, 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. ”

“ 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 CasCy 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. ”

“ Term by Term, in order that its decisions might be the better correlated, in the reader's mind, with the political events in the Nation's history. I have laid particular stress upon the views taken of the Court and of its important cases by con- temporary writers and statesmen ; for the impression made upon the public by the Court's decisions has often had as great an effect upon history as have the decisions themselves. At the same time, I have pointed out that contemporary appraisal of men and events is frequently mistaken, and that (as has been well said) destiny may laugh it to scorn. ”

“ A correspondent remarks that the late decision of the Judges of the United States in the Circuit Court of Pennsylvania, declaring an act of the present session of Congress, unconstitutional, must be matter of high gratification to every republican and friend of liberty; since it assures the people of ample protection to their constitutional rights and privileges against any attempt of Legislative or Executive oppression. ”

“ Ralph Izard of Charleston wrote to Edward Rutledge, stating that he had just returned from the Senate where the Judges "had been approved", and that they had been "chosen from among the most eminent and distinguished characters in America, and I do not believe that any Judiciary in the world is better filled." John Brown, a Congressman from Kentucky, after reciting the nominations, wrote: "Our public affairs in every department go on so smoothly and with such propriety that I entertain sanguine hopes that the present Government will answer all the reasonable expectation of its friends. ”

“ Against this opinion, it was allied that the analogy drawn was not sound, but rather dangerous; that the latitude given to the word concern would tend to give that officer a right officially to interfere in any law controversy between citizens, as the United States were concerned in seeing justice done in every case,—and that as the act of the Attorney General was not within his ordinary duty, it would require special authority from the Supreme Executive to establish its propriety. ”

“ 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. ”

“ In any community, the fullness and suflSciency 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. ”