Louis Boudin and the Rise of Judicial Power

Throughout the history of the United States, radicals and socialists have repeatedly been forced to address this very question. Probably the most systematic attempt at answering it came in the writings of Louis Boudin, a socialist lawyer and author of Government by Judiciary (1932). The book was a sustained polemic against the Supreme Court and the way its constitutional role had been interpreted.

Over more than a thousand pages of careful study of the court’s judgments, Boudin pursued the argument that the Supreme Court was the most destructive force within American public life, guaranteeing the dominance of conservative politics:

Our judges declare unconstitutional what they consider unwise or unjust or inexpedient — being guided almost exclusively by their philosophical, political, social and economic beliefs, and little or not by constitutional texts.

Key to Boudin’s argument were the nineteenth-century decisions of the court in upholding slavery, resisting the Republic during the Civil War, and sabotaging Reconstruction. The best known of these pro-slavery decisions was Dred Scott v. Sandford (1857) which found that people of African descent, whether slaves or free, could not enjoy the privileges of the Constitution.

Government by the Supreme Court, Boudin wrote, meant “government by a few Conservative men.” He argued that the hegemony of the Supreme Court over the other institutions of American life was not obvious from anything written in the Constitution. Members of the court had needed to create this principle retrospectively and at a late stage.

It was not until the decision in Dred Scott that judges felt powerful enough to declare laws made by Congress unconstitutional. Elected lawmakers criticized the court for overstepping its limits into areas — the day-to-day governing of the country — from which its reach had always previously been excluded.

Standing for the Senate in 1858, two years before he was elected to the presidency, Abraham Lincoln promised to “do what we can to have the court decide the other way.” The measures chosen by Lincoln to defeat the court included the appointments of three justices to the Supreme Court in 1862, with a fourth the following year and a fifth in 1864. The most radical of these appointments was that of the fourth justice, Stephen Field.

At the same time, Congress passed a Tenth Circuit Act of 1863, expanding the size of the court to ten justices. With Lincoln’s appointments and the passage of the 1863 Act, the previous pro-slavery majority was broken.

Roosevelt’s Threat of a Larger Court

The issue of the court’s size has never gone away. Although the Judiciary Act of 1869 fixed the size of the Supreme Court at nine judges, this act is of no great legal standing. The Congress of the day made it, and today’s Congress could just as easily choose to increase the size of the court at any time. The last occasion in US history that such a measure was seriously proposed was in 1937, when President Franklin Roosevelt brought forward a Judicial Procedures Reform Bill.

The Supreme Court had struck down a series of New Deal reform measures. For example, it held that the Railroad Retirement Act was unlawful because it frustrated “interstate commerce” by promising a pension for every railworker. According to the court, the rules of the market dictated that any new business ought to be able to pay its workers less than its rivals. From this perspective, any breach of market principle was also a breach of the US Constitution.

Roosevelt responded by stating that the Supreme Court was almost unique in comparison to federal courts for allowing justices to remain in judicial office past any retirement age. Government by a gerontocracy, he warned, meant government by people with no interest in or understanding of the great social questions of the day.

In an address to the nation, Roosevelt set out what he was proposing:

Whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate.

Less than a month after Roosevelt’s address, the Supreme Court had to address the question of whether a federal minimum-wage law was constitutional. The Court approved the law by a five-four majority and ruled thereafter in favor of New Deal laws.

Removing the Bad Apple

Socialists outside the United States have also had to address similar issues of judicial overreach. The best-known judge in the Britain of the late 1970s and early 1980s was Lord Tom Denning, the “Master of the Rolls” (in other words, the leading judge in our Court of Appeal). He became notorious for his outspoken conservative views.

Denning described gay men as “promiscuous, exhibitionist.” Prisoners, he held, could not sue their jailers, while no judge should challenge the decisions of ministers to deport foreigners. No woman teacher who had “invited a man to her room” ought to remain in her post, according to Denning.

In Britain, as in the United States, no judge could be removed from political office on the grounds of their opinions. As late as 1959, the UK also lacked a judicial retirement age. Denning, having been appointed prior to that law, was exempt from it.

At its 1979 annual general meeting, which coincided with Denning’s eightieth birthday, the Haldane Society of Socialist Lawyers passed a resolution calling for Denning’s resignation. The Haldane Society was denounced for this vote: lampooned by the right-wing press and also criticized by the liberal Guardian newspaper. To some, the idea of campaigning for a judge to resign seemed monstrous. If politically minded people could campaign for a judge to be dismissed, they wondered, would anything be left of the principle of judicial independence?

But Denning’s reactionary pronouncements kept on coming. After six innocent Irish men were wrongly convicted of the Birmingham pub bombings, having been tortured and framed by the police, Denning refused to allow their appeal to be heard, on the following grounds:

If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats . . . That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.”

Later, Denning doubled down on his stance toward the Birmingham Six, telling one interviewee that it would be better if those wrongly accused of being terrorists had been hanged: “Then we should have forgotten all about them.”

In May 1982, Denning belatedly resigned. The last straw turned out to be his public insistence that no “black, coloured,” or “brown” person should be allowed to sit on a jury: “They will never accept the word of a policeman against one of their own.”

By making himself the spokesmen of a political constituency, Denning had also made himself accountable to his fellow right-wing populists. On an issue where even they were urging caution, he refused to stop. Ultimately, the dynamics of censure and public criticism were so powerful that even Denning could not resist them.

Unfortunately, it seems unlikely that the ultraconservative judges on the present-day Supreme Court will emulate Denning and resign. However unpopular their views may be with the American people as a whole, there is a powerful right-wing movement that worked tirelessly to put them in their current positions and will encourage them to stay there for as long as they are able.

The strategies once deployed by Lincoln and Roosevelt, on the other hand, show that there is no reason to throw in the towel when confronted with a court determined to thwart the most elementary reforms.