The American Commonwealth. Viscount James Bryce
last decision excited some criticism, especially among the more conservative lawyers, because it seemed to remove restrictions hitherto supposed to exist on the authority of Congress, recognizing the right to establish a forced paper currency as an attribute of the sovereignty of the national government. But be the decision right or wrong, the reversal by the highest court in the land of its own previous decision may have tended to unsettle men’s reliance on the stability of the law; while the manner of the earlier reversal, following as it did on the creation of a new judgeship and the appointment of two new justices, both known to be in favour of the view which the majority of the court had just disapproved, though apparently not appointed for that reason, disclosed a weak point in the constitution of the tribunal which may some day prove fatal to its usefulness.
The other misfortune was the interposition of the court in the presidential electoral dispute of 1877.16 The five justices of the Supreme Court who were included in the electoral commission then appointed voted on party lines no less steadily than did the senators and representatives who sat on it. A function scarcely judicial, and certainly not contemplated by the Constitution, was then for the first time thrown upon the judiciary, and in discharging it the judiciary acted exactly like nonjudicial persons.
Notwithstanding this occurrence, which after all was quite exceptional, the credit and dignity of the Supreme Court stand very high. No one of its members has ever been suspected of corruption, and comparatively few have allowed their political sympathies to disturb their official judgment. Though for many years before 1909 every president has appointed only men of his own party, and frequently leading politicians of his own party,17 each new-made judge has left partisanship behind him, while no doubt usually retaining that bias or tendency of his mind which party training produces. When a large majority of judges belong to one party, the other party regret the fact, and welcome the prospect of putting in some of their own men as vacancies occur; yet the desire for an equal representation of both parties is based, not on a fear that suitors will suffer from the influence of party spirit, but on the feeling that when any new constitutional question arises it is right that the tendencies which have characterized the view of the Constitution taken by the Democrats on the one hand and the Republicans on the other, should each be duly represented.
Apart from these constitutional questions, the value of the federal courts to the country at large has been inestimable. They have done much to meet the evils which an elective and ill-paid state judiciary inflicts on some of the newer and a few even of the older states. The federal Circuit and District judges, small as are their salaries, are in most states individually superior men to the state judges, because the greater security of tenure induces abler men to accept the post. They exercise a wider power of changing the jury than most states allow to their judges. Being irremovable, they feel themselves independent of parties and politicians, whom the elected state judge, holding for a limited term, may be tempted to conciliate with a view to reelection. Plaintiffs, therefore, when they have a choice of suing in a state court or a federal court, frequently prefer the latter; and the litigant who belongs to a foreign country, or to a different state from that in which his opponent resides, may think his prospects of an unbiased decision better before it than before a state tribunal. Nor is it without interest to add that criminal justice is more strictly administered in the federal courts.
Federal judgeships of the second and third rank (Circuit and District) have been hitherto given to the members of the president’s party, and by an equally well-established usage, to persons resident in the state or states where the Circuit or District Court is held. In 1891, however, a Republican president appointed two Democrats to be judges of the new Circuit Court of Appeals, and placed several Democrats on the (temporary) Private Land Claims Court. Cases of corruption are practically unknown, and partisanship, or subservience to powerful local interests, though sometimes charged, is infrequent. The chief defects have been the inadequacy of the salaries, and the insufficiency of the staff in the more populous commercial states to grapple with the vast and increasing business which flows in upon them. So too, in the Supreme Court, arrears have so accumulated that it is now more than three years from the time when a cause is entered till the day when it comes on for hearing. Some have proposed to meet this evil by limiting the right of appeal to cases involving a considerable sum of money; others would divide the Supreme Court into two divisional courts for the hearing of ordinary suits, reserving for the full court points affecting the construction of the Constitution.
One question remains to be put and answered.
The Supreme Court is the living voice of the Constitution,18 that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as someone has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.
To discharge these momentous functions, the Court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.
Does it possess, has it displayed, this strength and stability?
It has not always followed its own former decisions. This is natural in a court whose errors cannot be cured by the intervention of the legislature. The English final Court of Appeal always follows its previous decisions, though high authorities have declared that cases may be imagined in which it would refuse to do so. And that court (the House of Lords) can afford so to adhere, because, when an old decision begins to be condemned, Parliament can forthwith alter the law. But as nothing less than a constitutional amendment can alter the law contained in the federal Constitution, the Supreme Court must choose between the evil of unsettling the law by reversing, and the evil of perpetuating bad law by following, a former decision. It may reasonably, in extreme cases, deem the latter evil the greater.
The Supreme Court feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed. Of course, whenever the law is clear, because the words of the Constitution are plain or the cases interpreting them decisive on the point raised, the court must look solely to those words and cases, and cannot permit any other consideration to affect its mind. But when the terms of the Constitution admit of more than one construction, and when previous decisions have left the true construction so far open that the point in question may be deemed new, is a court to be blamed if it prefers the construction which the bulk of the people deem suited to the needs of the time? A court is sometimes so swayed consciously, more often unconsciously, because the pervasive sympathy of numbers is irresistible even by elderly lawyers. A remarkable example is furnished by the decisions (in 1876) of the Supreme Court in the so-called Granger cases, suits involving the power of a state to subject railways and other corporations or persons exercising what are called “public trades” to restrictive legislation without making pecuniary compensation.19 These decisions evidently represent a different view of the sacredness of private rights and of the powers of a legislature from that entertained by Chief Justice Marshall and his contemporaries. They reveal that current of opinion which now runs strongly in America against what are called monopolies and the powers of incorporated companies.
The Supreme Court has changed its colour, i.e., its temper and tendencies, from time to time, according to the political proclivities of the men who composed it. It changes very slowly, because the vacancies in a small body happen rarely, and its composition therefore often represents the predominance of a past and not of the presently ruling party. From 1789 down till the death of Chief Justice Marshall in 1835 its tendency was to the extension of the powers of the federal government and therewith of its own jurisdiction, because the ruling spirits in it were men who belonged to the old Federalist