Page:The Green Bag (1889–1914), Volume 08.pdf/416

 The Courts at Bar.

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THE COURTS AT BAR. FOR the first time in the history of the country the Federal Courts have been arraigned at the bar of public opinion, charged with — not high crimes — but mis demeanors. The majority of a party conven tion of delegates from every State in this Union has, with severe language, attempted to rebuke not only the Supreme Court at Washington, but Federal Courts of States, for alleged usurpations and for capricious decision while declaring against the life tenure which the Fathers of the Constitution embodied among its provisions. Another party comes forward to object to such, or to any, arraignment in the political forum of the Judiciary. Upon two previous public occasions the decisions of the Supreme Court upon a public question have been questioned and indeed passionately attacked. Notably so when, a little more than thirty-six years ago, a party, by resolutions and oratory, inveighed against what was popularly known as the Dred Scott decision, which was penned by the Chief Justice and endorsed by other learned judges, and the language, as is now universally agreed, distorted for political advantage. A decade later public sentiment divided in criticism upon what was known as the legal tender decision, wherein the Su preme Court equally divided in opinion, with the remarkable result of a Chief Justice, true to his legal convictions, declaring uncon stitutional a statutory provision which, in a former administrative official position, he had himself formulated and recommended its enactment. Public feeling rose high when the equal division was broken and a decision reached only by the creation of two new justices whose votes turned the scale. Party feeling charged that these additional judges had been, previous to their selection, polled on the question important to the government by the appointing power, although no evi dence to support the charge was ever ad

duced, and it rested then as since upon mere surmise. Not long afterwards judges of the Supreme Court, acting as a commission to decide a presidential election, decided it by a majority of one, with every judge voting in accordance with his previous political opinions on a quasi political question. Again public feeling and severe criticism more or less severely assailed the Court and drew forth warm defenses. Nearly two decades later the Court again divided upon a heated public and political question as to the con stitutionality of an income tax, and once more a final decision prevailed by a major ity of one, produced by one of the judges upon rcargument, changing his previous views and, as none doubted nor insinuated to the contrary, from honest convictions and under sober second thought. These various debatable results, and es pecially that upon the income tax, appear to have impressed some portions of the people with suspicion, and perhaps prejudiced in quiry. And at length the dubitantur of a portion of the populace brought the Supreme Court into the political arena. It is a sig nificant incident that on the argument in favor of the constitutionality of the income tax, counsel James C. Carter, an eminent member of the New York Bar, boldly, and, as some have dared to intimate, in the nature of a respectfully conceived and respectfully uttered menace, asserted that if the Court decided against his client the time might ar rive when an angry portion of the populace would, like another Coxey army, march upon Washington for a reckoning with the judges. The pending question, for the first time in the history of the Republic, arrayed masses against classes, and the poor against the rich. About the same period, Federal Circuit and District Courts, for the first time, pushed the procedure of injunction beyond matters