Orsamus Cole Quotes

The New Deal liberal Democrats had complained that the Supreme Court was making national policy and law and not interpreting law. They tried to pack the Supreme Court by adding more justices who would be more sympathetic to the New Deal. (See {587549}.) At the beginning of the 21st century it was the conservative Republicans who were making the same claim that the Supreme Court was making law and not interpreting it. The pattern seems to be when the court votes for your side, they are interpreting the law. When they vote for the other side, they are activist—making law improperly.

Marshall is famous for, as Chief Justice, establishing the principle that the Judiciary can override Congress and the Executive in determining Constitutionality. However, as this quotation illustrates this principle had been discussed in open debate on the ratification of the Constitution. It was not simply a grab for power by a Chief justice; he uttered this quotation long before he ever suspected he would be a judge but actually spent much of his career in the executive and legislative branch of government.

The view that the Supreme Court was the final arbiter of constitutional controversies was not held in early America.

See John Marshall's later (1803) use of the concept and term "repugnant." {606483}

Powell was the Secretary of State and Addington kept advising the administration that as long as the President was acting in defense of the country in his capacity as Commander in Chief, he did not have to obey any existing laws that had been Constitutionally passed which in the opinion of the President restricted or limited the President or the executive branch. Addington was an attorney and Assistant to the Vice President, but he was given much responsibility for administration policy. Powell the Secretary of State of the Administration could not have disagreed more and although most politicians including Republicans disagreed with the Addington thesis, Powell was one of the few Republicans to criticize the Addington position.

This concept of balance of power and the equal role of the judiciary is actually quite rare. Even in Parliamentary democracies the parliament can override any court interpretation. In England, the upper legislative house, the House of Lords, actually serves as the nation’s highest or supreme court. And these “Law Lords” can override all regular judicial bodies.

One of the conundrums of our constitutional system is who has the last word as to what the Constitution means. Essentially it is the judicial branch headed by the Supreme Court. But there are those who believe that the current popular majority should have a say in what is or is not constitutional. If so the legislative branch should have the last word. Still others say that the President is the only person elected by ALL the people, so his opinion most reflects the will of the public. And then there are most who argue that the Constitutional system was created just to avoid the power of currently popular majorities, and the courts should decide based on the Constitution itself. So the statement has very little meaning except that Phillips thinks that the courts have too much power. Whoever gets to decide what is or is not Constitutional will be accused of being “over” the Constitution by those who don’t like the decisions. In our system, that is the courts.

The Roosevelt administration had stemmed the tide of Hoover’s Great Depression but the nation had not yet recovered. The New Deal measures, most of which would be considered fundamental to good government 50 years later was being constantly thwarted by a Supreme Court with a strong arch conservative majority headed by James McReynolds, a virulent, overt, anti-Semitic racist, who hated FDR—see {616652} and {585241}. The situation was to many like that which existed before the Civil War when the Court rendered the Dred Scott decision that so harmed the nation. Frankfurter, not then a Supreme Court Justice, urged Roosevelt to do something lest the American Public lose all respect for the Court and our Constitutional system and have the nation harmed by not allowing reforms like child labor laws to go through. The court actually ruled by a narrow majority that the government could not pass laws making it illegal for 11 year old children to work in coal mines or factories. FDR attempted to add more justices turning the majority into a majority—“packing the Supreme Court”, but that politically backfired. Some of the reforms never went through while others needed Constitutional Amendments like the end to Prohibition.

Originally it was published in Boston under the name “A Columbian Patriot.” She was worried about the jurisdiction of the Supreme Court extending throughout the country and yet the nation was very much smaller then than it is today. However, transport and communications have grown with the country.

Hatch was the chairman of the Senate Judiciary Committee at the time.