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.
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.
When 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.
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.
David Renton is a barrister and professor. His next book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, will be published by Penguin in July.