Nine Men Against America - Rosalie Gordon

Court Packing Begins—Black and Reed

Justice Black, at the present writing the oldest member of the Court in point of service, though not in age, is the enigma of the bench. He was born in 1886 in Harlan, Alabama, in a cross-roads cabin in the small-farm country. He was the eighth child in a family supported by a country storekeeper, so his formal schooling was slight. He was largely self-educated until he entered the University of Alabama, where he got his law degree in 1906. As a member of the Senate in the early New Deal days, he went to the limits of congressional power—and beyond— in lashing out at so-called lobbyists. The "lobbyists" were private business interests—the favorite whipping boys of that day—and Senator Black used tactics which made the late Senator McCarthy's attacks on communists seem mild by comparison—a fact conveniently forgotten by McCarthy's enemies.

Black's reputation at the time of his appointment had been made as chairman of Senate committees investigating, first, merchant-marine and air-mail subsidies, and later, the lobbies. In the latter activity he seized from telegraph agencies and private corporations files containing more than five million telegrams and letters in his search for evidence against business interests. This brought down on his head such a storm of public protest that he felt called upon to defend not only himself but the Senate's prerogatives. Attempts to discredit his investigation "by calling it a fishing expedition," he denounced. He declared that a congressional investigation "is not a trial based upon an indictment where the facts are already known and merely need presentation to a jury. It is a study in the public interest."

Twenty years later, when the Supreme Court took it upon itself practically to wipe out the investigating powers of Congress, Justice Black was to join the Court in declaring: ". . . there is no congressional power to expose for the sake of exposure."

When Senator Black was out to "get" a businessman or a private corporation, he believed that "most valuable of all, this power of the probe is one of the most powerful weapons in the hands of the people to restrain the activities of powerful groups who can defy every other power."

But Justice Black, faced with the defiant power of the communist conspiracy, declares with the Court that a congressional investigation of an admitted accomplice of communists is "a new kind of congressional inquiry unknown in prior periods of American history." Agents and accomplices of the Red tyranny evidently occupy a much more favorable spot in Justice Black's mind than an American businessman.

Perhaps because of his antipathy to private business, Senator Black became President Roosevelt's first appointee to the Supreme Court, despite the fact that his previous judicial experience consisted of 18 months as a police-court judge. But, for all that, Justice Black had a sharp and busy mind and became one of the hardest-working and most industrious members of the Court.

But a busy mind is not necessarily a straight-thinking mind, particularly when subjected to unexpected pressures. Shortly after Black's appointment, it was revealed that he had once been a member of the Ku Klux Klan. He had already been confirmed by the Senate and had gone off to Europe on a vacation. He returned to find the country seething with speculation as to whether the story was true or not. He went on the air in a nationwide radio address and admitted the charge. But he stayed on the Court. His sharp mind has been busy ever since proving how "liberal" he is. He became known as the leading dissenter on the Court, though in recent years, as the Court has swung more and more to the left and thus closer to Justice Black's philosophy, his dissents have gradually lessened.

Justice Black's own words are the best indication of the contempt in which he holds the American system and its Constitution. In 1955 he declared, "The world could not do better than to follow the political and social ideas" of the late Dr. Albert Einstein. Dr. Einstein may have been a great scientist, but his "political and social" ideas were much more akin to those of Soviet Russia than of the American republic. That, of course, did not deter Dr. Einstein—when he was fleeing Hitler's Germany—from choosing the long journey to the capitalist United States rather than the much shorter one to the socialist heaven to the East. Once here, he exercised his "political and social" ideas, which Justice Black so much admired, by advising young men to treat with disdain the efforts of congressional committees to ferret out communist termites.

Roosevelt's second appointee to the Court, Justice Stanley Reed, was from Kentucky. He was born there in 1884 in Mason County. He got his Bachelor of Arts degree from Kentucky Wesleyan College and later studied law at Columbia and the Universities of Virginia and Paris. But there is no record of his ever receiving a Bachelor of Laws degree. He, too, had no previous judicial experience. He was a Democrat who became a reliable New Deal bureaucrat, though he began his Washington career with the Federal Farm Board under Hoover. As Roosevelt's Solicitor General he argued, and lost, the NRA and AAA cases before the Supreme Court. Before that, he was chief counsel to the Reconstruction Finance Corporation, and it may have been his advice in that post which endeared him to Roosevelt. When a question arose as to the constitutionality of a New Deal measure—the suspension of the gold standard which wiped out contractual obligations calling for payment in gold—Reed evidently advised the Attorney-General that he should take the position that while the act might be unconstitutional, it was all right because it didn't do anybody any harm!

In later years, however, the Court apparently went too far to the left for Justice Reed, and he began to dissent in a number of cases, particularly those involving the communist conspiracy. Perhaps he had finally come to regret the contempt he seemingly felt for the Constitution back in 1937. In that year he made a speech in which he sneered at fixed precedents in law and spoke of the "stagnation of slavish adherence to the past." Unfortunately, that regret—if he felt it—came too late to prevent him from going along with the Court in the most revolutionary decision of recent years, as we shall see.

Justice Reed retired from the Court in 1957. Toward the end of that year, he was named to be the first head of President Eisenhower's extremely controversial Civil Rights Commission. After a few weeks of soul searching, to the surprise and shock of the Eisenhower administration Justice Reed declined the post, declaring it would be improper for him to serve, inasmuch as he was still on call to hear cases in the lower federal courts.