Protecting Our Country From Momentary Passions

In a 1937 speech to the New York State Bar Association, then-Assistant Attorney General Robert H. Jackson offered a stark view of the Supreme Court’s role in government. He posited that the judicial branch, with its “[u]nreasoning devotion to precedent” in ignorance of the realities of life, had created a “[g]overnment by litigation” in contravention of effective policy enforcement. Robert H. Jackson, Address Before the New York State Bar Association (New York, N.Y., Jan. 29, 1937). “Congress looks forward to results, the courts look backward to precedents, the President sees wrongs and remedies, the Courts look for limitations and express powers. The pattern requires the Court to go forward by looking backward.” Id. Jackson’s specific target that night was the monopolizing of the Court by the legal profession, with its penchant for technical legal patterns only attorneys can unravel. Jackson found that the conflict in philosophy between this staid legal thinking and expeditious political progress created a “struggle between every progressive administration in our history against the Federal bench.” Id.

Jackson’s rebuke that night of the “paralyzing complexity of government” (id.) unintentionally foreshadowed Franklin D. Roosevelt’s attempt to change the personality, if not the functionality, of the court to an institution more supportive of his goals. Robert H. Jackson, That Man: An Insider’s Portrait of Franklin D. Roosevelt 50-51 (Oxford University Press 2003). In his address introducing the so-called court-packing plan, Roosevelt pulled no punches in accusing the court of acting as a policy-making body, not a judicial one, by vetoing progressive social and economic legislation passed by Congress. Franklin D. Roosevelt, “Fireside Chat,” March 9, 1937 (online by Gerhard Peters and John T. Woolley, The American Presidency Project). He framed the court’s recent decisions as directly thwarting the will of the American people, specifically the voter-imposed mandate for Congress and the president to protect the nation against another economic depression. The court had become, in his opinion, an unbridled “super-legislature,” one against which the nation was required to “take action to save the Constitution from the Court and the Court from itself.” Id.