Nine Old Men

1. Escaping the Institution

• The Supreme Court laboured to protect the people against possible encroachments of
government but the people occasionally showed their ingratitude by amending the
constitution to permit the very encroachments against which they had been protected.

• Before the Civil War, the SC has always been attacked except when it uniformly upheld
the Alien and Seditions Acts and Fugitive Slave Act.

• Since the Civil War, especially in the 1920’s and 1930’s, the SC has been assailed because
it has invalidated congressional and state legislation

• People became bitterer against the nine old men as monopoly capitalism was succeeded
by finance capitalism and as economic opportunity narrowed in American Life.

o Liberalism: ideology which gives emphasis on a free market, laissez faire economy
and individualism

2. Issues

• SC had been a major issue of American politics under the New Nationalism as well as the
New Freedom

• Few seemed to desire to abolish Judicial Review entirely. Attacks upon the SC: launched
against the exercise of judicial review rather than the manner of its exercise.

• Justice Holmes and Justice Brandeis established a tradition of dissent.

• Liberals were for social justice while Conservatives where for property protection.

• The constitutional crisis under the New Deal was the greatest in US history.

o New Deal: the title Pres. Roosevelt gave to the series of programs he initiated
between 1933 and 1938 with the goal of providing 3R’s: relief, recovery and reform
to the people and the US economy during the Great Depression

o Roosevelt administration wanted to regulate both business and farming upon a

national basis

o The SC cast the creations of the New Deal into constitutional limbo

• Roosevelt, in his “horse and buggy” interview railed at the nine old men and proposed to
retire them and appoint judges who better understand the economic premises of the new
age.

• Listening to the people, the nine old men resolved that discretion was the better part of
valour.

• Court is generally accepted as liberal now and is housed in the palais de justice, although
on occasion, it has still made decisions that are not exactly the quintessence of liberalism.
 o Apex decision: court refused to remove the threat of the Sherman Anti-Trust Act as
a weapon against labour

o Case of Jehovah’s witnesses: court refused to respect religious scruples against

saluting the flag.

C. Secrets of Judicial Review

• The power of judicial review remains undisturbed. Secret lies in the nature of judicial
review as a governmental device.

• A legislature dealing with constitutional limitation tends to treat them from the point of
view of expediency and utility.

• When acts are tested by virtue of legislation, it is expected that a court operating under
guarantees of independence and impartiality, will never be tempted to deviate from the
letter of the constitution which is the letter of the law.

• A constitution can hardly be construed by the same technique as a grant in a deed. An

organic document can set limits to legislation in broad and general terms only.

• If a constitution is too explicit, it ceases to be a constitution. On the other hand, to set

more general limits to create a mere frame of government , is to free the hands of the
judges and make them masters rather than servants of the State

• While the court may make a decision that is socially vicious, it does not necessarily depart
from the Word. In the process of interpretation there is almost always a choice between
alternatives and it is inevitable that the choice of the judges will tend to be in accordance
with their economic prejudices.

• When legislation is destroyed by judicial review, there is no doubt that in the modern
world, in which not custom but legislation is the supreme form of law, the result is
particularly unfortunate.

• Even with the tremendous strain to which judicial review has been subjected, it has also
provided means for easing the strain and preventing the breaking point from being
reached. The advantage of a court in disposing of social and economic issues is that in the
judicial forum the conflict of classes is supposed to be reconciled under the highest ideals
of objectivity.

• The SC, however, speaks of its dooms in the name of the impartiality of the law.

• There thus occurs a paradox of conservative judges who seem to be on the liberal side
and for liberal justices who seem to be on the conservative side.

o Chief Justice Taft: hardly a liberal, was in favour of upholding the minimum wage
legislation

o Justice Holmes: betrayed the cause of liberalism on a number of occasions.

o The liberal justices without exception joined in killing the NRA.

 o Dissent does not undermine the belief in the integrity of the court. Dissent implies
at least that there is objective law to be discovered.

o While the individual judge may err, it is assumed that he does so in ignorance and
the integrity of the law itself remains.

D. Supreme Court Survival

• The mere fact of the SC’s survival suggests that the myth of interdepartmental war has
had only a partial reality and that the SC has been able to curb popular aspirations only
because it is an integral part of the most adroit political system ever devised to frustrate
the popular will.

• Above all, it is their lifetime tenure and the great difficulty of amending the Constitution
that have given the SC judges consciousness of power which has enabled them to make
themselves the dictators of American political life.

• Those who dream of a government of laws are concerned to rid the institution of judicial
review of its “abuses”--

o With a System where tenure of judges was less than absolute

o Where Congress could re-enact invalidated legislation with only slightly greater
difficulty than in the case of ordinary legislation

• Such a transformed system, like any system of almost perfect censorship would really
have little reason for existence. It would amount in effect to an abdication of function and
would moreover hardly constitute judicial review and in fact might compromise the
ordinary judicial functions of the Court which are usually almost entirely forgotten.

• Judicial review has been defended in the name of security of property yet it has been
unable to prevent two of the greatest confiscations in the history of property.

o Abolition of slavery without compensation

o Destruction of liquor interests.

• Judicial review defended in the name of peace and stability yet it precipitated one of the
bloodiest civil wars in modern history.

• The absolute reign of law has often been synonymous with the absolute reign of
lawlessness.