John Marshall Harlan Quotes
The Constitution is not a panacea for every blot upon the public welfare. Nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.
Reynolds v. Sims. 377 U.S. 533. Supreme Court of the United States. 1964. United States Reports, vol. 377, U.S. Government Printing Office, 1964, p. 624.
It is argued whether Scalia’s problem was that the Supreme Court was doing something new or radical or the country had changed. He had certainly lived through the greatest transformation of any society and culture on earth at a pace of change that far exceeds anything that has occurred before. Scalia is one who believes that the Constitution should not be interpreted in recognition of these changes, but should be immutable as it was written for the late 18th century. Most judges and legal scholars disagree and try to interpret the Constitution as the founders would have intended, knowing what we know, having the tools and powers we have, and facing the problems of the modern world. It represents a major legal and philosophical debate.
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.
TR had a Supreme Court where a conservative block was in the majority and declared a number of his key reforms as unconstitutional. The same thing happened to FDR as well. Since Supreme Court justices had lifetime tenure most presidents and congresses have to deal with a court that has the political makeup and political philosophy of previous administrations by which they were appointed. Reform and change presidents tend to see the Supreme Court as obstructionist.
The dramatic thing about this quotation is that in public, the mantra of conservatives about the courts of America is that they make and change laws as opposed to just interpreting and clarifying the laws. They traditionally accuse judges who rule against their favorite positions as using the courts as an instrument of political and social change. Here a leading conservative federal jurist, who thereafter became a member of the Supreme Court, was acknowledging and advocating the courts as instruments for conservative social, economic, and political change.
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.
Byrnes later was appointed to the court.
Cummings was arguing against a Constitutional amendment. His alternative led to Roosevelt's court packing schema.
John Marshall Harlan was an American lawyer and politician who served as an associate justice on the U.S. Supreme Court. He is often called "The Great Dissenter" due to his many dissents in cases that restricted civil liberties, including the Civil Rights Cases and Plessy v. Ferguson. Many of Harlan's views expressed in his notable dissents would become the official view of the Supreme Court starting from the 1950s Warren Court and onward. His grandson John Marshall Harlan II was also a Supreme Court justice.
