Dorothy Thompson

Winston-Salem Journal/August 17, 1937

The appointment of Senator Black to the Supreme Court is cheap. I can find no other one word to apply to it. Taking advantage of the Senate’s club spirit—and of the Senate’s own cheap promotion of Senator Robinson for the post for the purpose of putting the president in a hot spot—Mr. Roosevelt has pulled another smart trick. Or is it so smart? It confirms those who have opposed the court packing bill in the conviction that the president does not want to liberalize the Supreme Court but to abolish it, by turning it into a chorus of yes-men for the executive and Congress. The political result will be to make the new deal opposition in Congress stronger, and more timorous of passing any kind of social legislation.

Let us say clearly that where the present court has been divided, this column has almost always agreed with the minority of dissenting judges. It has agreed because of respect for the quality of their minds, the breadth of their spirits, their learning, and the logic and reason of their arguments. This appointment is not merely an attack on the Supreme Court— by sending to it a man who doesn’t believe in its essential function. It is a blow to democratic government—because the biggest problem of democracies is how to keep alive respect for intellectual integrity—and rational processes. An honest conservative could have accepted the appointment to the Supreme Court of Judge Learned Hand, or Dean Clark, of Yale, or Professor Corwin of Princeton, or Professor Felix Frankfurter, or Donald Richberg. All of these men are eminent liberal jurists, who believe in constitutional government and know what it is. Honest conservatives, whose concern is not the protection of existing interpretations of property rights, but is the protection of reason and dignity in American institutions, should, and have been proud of the presence on the bench of Justices Brandeis, Cardozo, and Stone. But Senator Black is not in their category. Rather is he in the category of Justice McReynolds, who was also a political appointee and has not developed, but offers dissenting opinions in the form of die-hard orations. We can expect the same kind of non-judicial oratory from Senator Black.

Does anyone who has ever heard Senator Black conduct an inquiry believe that his is the judicial temper? When he snarls at someone called supposedly as an expert, to testify in the wages and hours hearings, “Aren’t you an anti-new dealer?” As though no man’s opinion were worth anything unless he shared the senator’s social and political views.

What is the function of the Supreme Court, and what qualities of mind and spirit should characterize its judges? Let us not ask conservatives. Let us turn to eminent and famous liberals. Says Justice Cardozo, answering the first question, in his brilliant and beautiful little book, “The Function of the Judicial Process”:

“The utility of an external power, restraining legal judgment is not to be measured by counting the occasions of its exercise. The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision which have no patience with general principles, by enshrining them in constitutions, and consecrating to their protection a body of defenders. By conscious or subconscious influence, the presence of this power, aloof in the background . . . tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hld the standard alft and visible, for those who must run the race and keep the faith.”

Somehow I can’t see Senator Black preserving great ideals against the erosion of small encroachments, or being consecrated to the defense of anything except his leader’s policy, of infusing that with any “glow of principle.’’

And who should be chosen as judges? Professor Frankfurter approving quotes Judge Learned Hand, in his essay on the Supreme Court in the Encyclopedia of Social Sciences:

“The spirit, and culture, and insight which should be possessions of a justice of the Supreme Court have been stated by Judge Learned Hand:

“I venture to believe that it is as important to a judge, called upon to pass on questions of Constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbons, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Bacon, Hume, and Kant, as with the books which have been specifically written on the subject. For in such matter everything turns on the spirit with which he approaches the questions before him . . . Men do not gather figs from thistles nor supple institutions from judges whose outlook is limited by parish or class.’”

Appointment to the Supreme Court is the highest civilian honor which this country can bestow on any of her citizens. Learning, humanity, serenity, humility, love for principles and consecration to them—these are the virtues which it ought to reward. Senator Black’s qualifications are experience as a police court judge and unswerving loyalty to Mr. Roosevelt. With all the promises of a better civil service we have finally carried the spoils system to the supreme bench, openly and cynically. It’s a sin and a shame.