Men, Not Laws

Those who relished the impish irreverence of Thurman Arnold, whose books, The Symbols of Government and The Folklore of Capitalism , strewed the intellectual landscape with the deflated catch-phrases and shattered shibboleths of politics, will enjoy equally the latest work of another college professor, Fred Rodell of Yale, whose attitude toward the Supreme Court seeks the same level of good-humored if biting iconoclasm. Only a few judges earn his respect—from John Marshall to Earl Warren—and a great many his criticism—from the “fourth-rate” Court of Oliver Ellsworth to the recent “take-it-easy” assemblage presided over by Fred Vinson.

To begin with, nothing irritates Mr. Rodell more than the notion that there is such a thing as a “Court” opinion. Beneath the robes which he snatches away there are only men, “powerful, irresponsible and human,” wielding a power never granted by the Constitution, for life or good behavior. They are, in the words of Lincoln, commenting on the Dred Scott decision, “as honest as other men and not more so.” Chief Justice Taney, the slaveholder who decided Scott’s case, went far beyond ruling that a slave remained a slave regardless of many years spent in a free territory; he threw out the Missouri Compromise itself, the act of Congress which made the northern territories free, a law which had been in force for thirty years. So great was his power (it helped bring on the Civil War); so great was the power over the other branches of government which John Marshall, “the great chief justice,” had arrogated to the Court.

Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955 , by Fred Rodell. Random House. 338 pp. $5.

And the motive behind the power? In Mr. Rodell’s book, and providing the justice in question is conservative, it is always economic. John Marshall, the eleventh-hour creation of the outgoing Federalist Administration of John Adams, seems here to be motivated solely—even though he wins the author’s grudging admiration for his skill and ability—by the desire to preserve the rights of private property from the Jeffersonian and Jacksonian radicals; nothing more. Since he outlasted the Federalist party by 34 years, there was never such a durable, or effective, lame duck.

Indeed, the lame duck quality of the Supreme Court, from Marshall’s day to the era of the New Deal and the “Nine Old Men” who threw out the NRA, the AAA and other laws dear to the Administration of Franklin D. Roosevelt, calls forth the special fire of Mr. Rodell. So does the refusal of the judges—and this goes back to Washington’s Administration—to give “advisory” opinions and their insistence that they can only make a decision in an actual case they may graciously allow to be brought before them; the result, of course, is that many “cases” are somewhat fraudulent. Nothing mattered less to the Court than Mr. Marbury, in whose name (vs. Madison) the first big case was brought; or Mr. Schechter of the NRA case, whose “sick chickens” were represented before the Court by Cravath, de Gersdorff, Swaine & Wood (a Wall Street firm no small businessman could ever afford) ; or Dred Scott, whose freedom was privately promised no matter which way the official “decision” went. The author is particularly disturbed by those who look on Supreme Court history as a battle between advocates of strong central government ("broad interpretation") and partisans of states’ rights ("narrow") . It is all a matter of convenience at the moment, he says. In the time of Dred Scott, the defenders of slave property cried for a strong Federal government; a few years later they cried for states’ rights.

One can question the economic determinism which Mr. Rodell steadily imputes to the conservatives of the Court; certainly some one of them must have been motivated by something a little above and beyond the interests of the rich, by something more than the well-being of his social class alone; some one of them, certainly, must have glimpsed the mountain top. This is the fault common to all works of cynicism, the polemic quality which deprives them of lasting value. But it would be idle to deny that Mr. Rodell has written a fascinating and eminently readable history of the Court, in a style that canters along without requiring the reader to duck a single low-hanging branch of legal language. And it would be foolhardy to argue with his major conclusion respecting this most autocratic of democratic creations: The Supreme Court conforms much more to the individual backgrounds and prejudices of the highly-assorted citizens who sit on it than it does to the election returns.