The confirmation of the appointment of Judge Brett Kavanaugh last week demonstrated an unmistakable change in US values, principles and processes.
“I defy anyone to read the opinions in the TVA case, the Duke Power case and the AAA case and tell us exactly what we can do as a National Government in this session of the Congress to control flood and drought and generate cheap power with any reasonable certainty that what we do will not be nullified as unconstitutional.”
– President Franklin D. Roosevelt in 1937, venting his frustrations with the US Supreme Court’s rulings against his New Deal programmes.
The United States was going through the tribulations of the First Great Depression. Hundreds of banks had failed, millions were jobless, families were starving and poverty and misery were growing. And here was a popular president who seemed determined to help the ‘little guy”, the poor, the downtrodden, but a president whose initiatives were being frustrated apparently for no just cause by the Supreme Court. That’s how the idea of Roosevelt’s “packing the Court” originated.
Since he could not remove the justices who were hostile to his government and his programmes, they are on lifetime appointments; he began to toy with the idea of appointing more justices, to dilute, to outnumber the anti-New Deal justices, since there was nothing sacrosanct about having nine justices at the Supreme Court. The constitution did not specify there must be nine. So they could be more. But before that, the justices were present at his second inauguration where the president outlined his intentions and the philosophy behind them. Taking on the rich, he noted that “we have always known that heedless self-interest was bad morals; we know now that it is bad economics.” Those who forgot that should recognize that in the long run “economic morality pays” and that wealth was not simply a sign of virtue (the president was among the richest Americans). One of the most important lessons of the Great Depression, he said, was a new understanding which “undermines the old admiration of worldly success.” Millions of Americans, he said, could not enjoy even the absolute necessities of life. “I see one third of a nation ill-housed, ill-clad, ill-nourished” which, he said, gave him a mandate to establish a “new order of things.” To lead the country to recovery, the government required unprecedented boldness and must obtain the co-operation of two groups – the rich and the Court.
The first of those groups was the Supreme Court. Men and women in the American republic expect every agency of popular government including the Supreme Court to “use effective instruments to carry out their (the people’s) will.” The second group was the rich and the wealthy from whom he expected a lot of taxes to support his plans. He noted that the “test of our progress is progress, not whether we add abundance to those who have much; it is whether we provide enough for those who have little.” Roosevelt raised the tax rate of the richest citizens to 79 per cent.
Given the large number of the government’s initiatives ruled unconstitutional by the Court, Roosevelt saw the Court as obstructionist and took his case to the American people. The American form of government, he noted, was a “three-horse team” provided by the Constitution, so that their (Americans’) field could be plowed.” Now one horse – the Court – was not going along. The president was just another of the horses and the American people are on the driver’s seat, he said. They (Americans) should act to bring the horse of the Court in line.
The Supreme Court, Roosevelt further said, was not ready for “our modern economic conditions.” The president’s plans were for the younger generation. The nation must “save the Constitution from the Court and the Court from itself.” The Court, he said, needed “new blood.” The pressure on the Supreme Court justices was not limited to that from President Roosevelt. Two syndicated columnists from the now defunct Washington Star wrote a book about the justices titled “The Nine Old Men” which examined the service of each of the justices, described some of them in rather disparaging terms and stated that the Supreme Court Building was a “mausoleum of justice,” that Justice Robert who often provided the swing vote in the court was “the biggest joke ever played upon the fighting liberals of the US Senate.” But an even harsher judgment was reserved to those the authors described as “The Four Horsemen, as the “anti-New Deal justices” were known.
Author of The Forgotten Man, Amity Shlaes, noted that the reference was simultaneously Biblical and current both to the Four Horsemen of the Apocalypse in the Revelation of John – war, famine, pestilence and death – and to the stars of the Notre Dame’s football team. One of the justices, a Democrat, was attacked for his Catholicism and for promoting the power and profits of big business.
In the end, however, Roosevelt finally sent over to Congress a legislation that would increase the number of justices from nine to a figure that could range as far as 15. For each justice who stayed past the age of 70, a new one would be added. The pretext was the argument that the justices were too overloaded with cases.
But the 1937 America was a different America from last week’s when a flawed candidate was almost literally forced on the Supreme Court. Although the Democratic Party, the president’s party in 1937, had an overwhelming control of the Congress and, indeed, more than two-thirds majority in the Senate, Roosevelt’s move, despite his popularity, backfired. It was considered a bombshell and many were convinced that Roosevelt had indeed finally overreached. His enemies jumped in. His friends were chagrined. Walter Lippmann, the great columnist of the time regretted that “Mr. Roosevelt’s quarrel with the Supreme Court has no real relations with his power to avert another (stock market) crash.”
The confirmation of the appointment of Judge Brett Kavanaugh last week demonstrated an unmistakable change in US values, principles and processes. It was unfathomable how the Republican members of the judiciary committee could believe the accused and the accuser at the same time. It was impossible to understand how a job interview could be resolved in favour of an applicant accused of sexual offences by three different women, two of whom were not only credible but who were also eager to testify. If Prof. Blasey Ford showed absolute credibility, how could Judge Kavanaugh then be believed?
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The failure of the FBI to pursue the leads offered by the assaulted women to arrive at the truth was akin to US Supreme Court order to stop the recount of votes in Florida in Bush v. Gore in 2000, which led to an obvious miscarriage of justice, a travesty from which the Court has not recovered. Unlike the Democrats of 1937 who disowned their President’s radical proposals, the Republicans played Pilate with Prof. Ford last week.
Given Kavanaugh’s declarations that the Democrats have sown and would reap the whirlwind, it is impossible for a Democrat or a Clinton supporter or any liberal, for that matter, to expect justice in any case tried by Kavanaugh. He has thus devalued the Supreme Court.
The early signs of the decline of America did not begin with Kavanaugh’s confirmation. It became incontrovertible with the election of President Donald Trump. It was bound to happen. No empire lasts forever. The vital ramparts, such as the respect for the truth, are being chipped away. That’s what happened to Rome 200 years before it finally caved.