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The past is never dead. It's not even past

Not Even Past

Hatton Sumners and the Retirement of Supreme Court Justices

We are especially pleased to post this essay by a long-time supporter of the UT Austin Department of History. Josiah M. Daniel III, of counsel at the international law firm Vinson & Elkins, LLP, received his J.D. from The University of Texas School of Law in 1978 and his master’s degree in History from UT in 1986.  In 2011, Mr. Daniel was elected to membership in the prestigious American Law Institute. He is an inaugural member and former Chair of the UT History Department Visiting Committee.

By Josiah M. Daniel, III

Working this month in historical archives and observing the news of the April 10, 2017 appointment of Neil Gorsuch to replace Justice Antonin Scalia, who died in 2016, have reconfirmed for me that history (if known) can illuminate current events.

Appointments of Justices of the Supreme Court are matters of high public interest. Presidents appoint individuals for that office, with “advice and consent” of the Senate, because their nominees share the president’s views on key public issues. After all, the final word on constitutionality and interpretation of legislation and executive actions resides with the Court as part of the Constitution’s checks and balances. And, as mandated by Article III, Supreme Court justices, and all federal judges, serve lifetime appointments “during good Behaviour” with “compensation . . . not [to] be diminished during their continuance in office.”

The Supreme Court Building (via Wikimedia Commons).

Presidents are attuned to the age and health of each serving justice in anticipation of vacancy, whether by death, resignation, or retirement. On the other side, the decision of any justice of advancing years to leave office, rather than to serve until death, has often been a difficult personal choice. For the past 80 years, that decision of aging justices has been eased by an  enactment sponsored by a Dallas congressman, Hatton W. Sumners (1875-1962).

Sumners’ statute, the 1937 Retirement Act, guarantees undiminished lifetime salaries to retiring justices and it authorizes them to continue in the adjudication of federal cases in the lower courts, if desired. Sumners had been appalled when, early in the Great Depression, Justice Oliver Wendell Holmes, aged 90, resigned after thirty years’ service and had his pension immediately halved in a penny-pinching measure. The Retirement Act prevented that situation but is also noteworthy because of its role in the “court-packing crisis” of 1937.

Sumners’ definitive biography remains unwritten, but he was a significant Congressman over four decades of the 20th century. In 1894 Sumners moved from Tennessee to Texas and quickly became a lawyer. In 1912 he won the at-large seat for the U.S. House of Representatives and two years later he won a seat in Dallas’ Fifth Congressional District, which he held until 1946. His papers reside in the archive of the Dallas Historical Society, where I have been reviewing them.

Congressman Hatton W. Sumners in 1938 (via Wikimedia Commons).

Sumners was devoted to his work and old fashioned in dress and speech. One woman who lobbied him in the late 1930s described him as “the epitome of the Southern conservative [who] even wore a frock coat. . . . a relic of the past.”  From 1932 until he left office, Sumners chaired the House’s Judiciary Committee, a position he used, among other things, to block anti-lynching legislation based on his spurious and degrading view of African Americans. This did not prevent President William Howard Taft from calling him “the best lawyer in Congress,” or a 1939 LIFE magazine poll rating him most highly for integrity among all Congressmen (a video clip of Sumners speaking in 1937 can be found here).

Roosevelt’s first term, from 1933 to 1937, generated a surge of innovative legislation, commonly known as the “New Deal,” that tackled the deep economic and social problems of the Great Depression with innovations such as Social Security, relief for the poor and unemployed, reform of the financial system, and economic recovery.

A scene of destitution during the Great Depression (via Wikimedia Commons).

But virtually all of those new federal laws were challenged in the federal courts on constitutional grounds including the argument that the legislation violated “substantive due process,” the predominant constitutional theory typified by the famous Lochner v. New York decision of 1905 that generally vindicated private-property rights over other interests and policies.

On the Supreme Court, the “Four Horsemen,” Justices Willis Van Devanter, Pierce Butler, James Clark McReynolds, and George Sutherland, were committed to that doctrine; and, at the start of the series of overturnings of New Deal enactments in 1935 and 1936, their ages ranged from 69 to 76 (at the time, male life expectancy was 60). The newest justice, Owen Roberts, appointed by President Herbert Hoover in his final year in office, joined them frequently for the 5-4 majority in those cases. FDR was outraged and after winning reelection by a landslide in November 1936, the President announced his so-called “court-packing plan” to overcome this roadblock to his legislative agenda by increasing the Supreme Court’s membership from nine to a maximum of fifteen if justices reaching the age of 70 declined to retire.

Sumners had joined the New Deal legislative team when Roosevelt took office in 1933, but he was more conservative than the President, often seeking to steer a middle-of-the-road course on the various issues of FDR’s legislative program.

‎President Roosevelt signing New Deal legislation, 1933 (via Wikimedia Commons).

After a preview of the court-packing plan at the White House on February 5, 1937, Sumners made a pithy comment that was misquoted, then and subsequently, as “Boys, here’s where I cash in my chips,” interpreted to mean he was departing the FDR team because he disagreed with its tactics.

But as a letter in the Dallas Historical Society’s archive shows, Sumners had not spoken the last two words, “my chips,” and what he meant was “to go in and to do what I could to help straighten things out.”  Sumners helped defeat FDR’s plan to pack the Court with more progressive justices; but in the same letter, written after the defeat of the plan, he added that in the future “it will be generally agreed that I have been able in this matter to render a service of value to the President, the party, and the country, especially when considered in connection with the other legislation which I sponsored.”

That last reference was to Sumners’ efforts, prior to Roosevelt’s unveiling of the court packing plan, to accomplish the President’s desired result—the addition of new, more progressive members to the Supreme Court—by other paths. On one hand, he was close to and in communication with Van Devanter and the Chief Justice, Charles Evan Hughes, urging calm and patience about the court-packing plan.

Sumners to Charles Evans Hughes, March 22, 1937 (Sumners Papers, Dallas Historical Society, via author).

On the other hand, the congressman sponsored a bill to incentivize the older justices to retire by assuring the continuity of their salary if they were to do so. On January 11, 1937, he had introduced H.R. 2518:

Justices of the Supreme Court are hereby granted the same rights and privileges with regard to retiring, instead of resigning, granted to [all other federal] judges . . ., and the President shall be authorized to appoint a successor to any such Justice of the Supreme Court so retiring from regular active service on the bench, but such Justice . . . so retired may nevertheless be . . . authorized to perform such judicial duties, in any judicial circuit . . . as such retired Justice may be willing to undertake.

Sumners’ bill sailed through Congress, and on March 1, 1937, the President signed it into law.

H.R. 2518, enacted as Public Law No. 10, codified at 28 U.S.C. § 375 (via Legisworks).

The court-packing plan was defeated in the Senate, 70-20, on July 22. Most historians credit the defeat, not to Sumners’ Retirement Act, but to the “Switch in Time that Saved Nine.” That is, the youngest justice on the court, Owen Roberts, who had been voting with the Four Horsemen in those 5-4 reversals of first-term New Deal programs, suddenly voted to sustain the constitutionality of the minimum wage law in a decision issued by the Court on March 29, 1937. Commentators have noted, for instance, that Roberts cast his vote in that case before the advent of the court-packing plan, and some have perceived a jurisprudential shift already underway.

But the most recent scholarship substantially credits Sumners, who obtained an initial draft of the Retirement Act from FDR’s team, for pushing it through quickly, which did in fact induce several rather quick retirements. These retirements gave Roosevelt vacancies to fill, assuring the survival of New Deal legislation and enabling FDR to shape the Court for a long time.

Justice Van Devanter on his last day before retirement, with Chief Justice Charles Evans Hughes (via Wikimedia Commons).

First, Justice Van Devanter took advantage of Sumners’ enactment and retired on June 2, 1937 at age 78, which vacancy FDR filled with one of most consequential justices of the twentieth century, Justice Hugo Black. Then Justice Sutherland retired on January 17 the next year, replaced by Justice Stanley Reed.

In the decades since, only five justices have resigned, most recently Abe Fortas in 1969, but 24 have retired with the benefits of the Retirement Act. Some retired justices have elected to continue to adjudicate cases. Justice Tom Clark sat, after his 1967 retirement, in the lower courts for ten years, and more recently Justice Sandra Day O’Connor, who retired in 2006, has joined judicial panels deciding scores of cases in the Courts of Appeal in almost all federal circuits.

Today, two sitting justices are in their 80s, and one is 78. Will the Retirement Act encourage any of them to retire and provide an additional appointment opportunity for the current administration?

Sources:Hatton W. Sumners Papers, Dallas Historical Society.Elmore Whitehurst, “Hatton W. Sumners: His Life and Public Service: An Extended Biographical Sketch,” n.d., Web

William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995)

Marian McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (2002)

Burt Solomon, FDR v. the Constitution: The Court-Packing Fight and the Triumph of Democracy (2009)

Judge Earl Glock, “Unpacking the Supreme Court: Judicial Retirement and the Road to the 1937 Court Battle,” Mar. 2017, Web


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The Men Who Lost America, by Andrew O’Shaughnessy (Yale University Press, 2013)

The Men Who Lost America book cover

It is a pleasure to read a full account of the British side of the American Revolution. In Andrew O’Shaughnessy’s “The Men Who Lost America,” we see the beginning of the story through the eyes of George III, who was still physically strong and mentally robust. He proclaimed, in words that Churchill might later have uttered, “We are contending for our whole consequence whether we are to rank among the Great Powers of Europe or be reduced to one of the least considerable.” Two dates were crucial: In October 1777 at Saratoga, N.Y., Gen. Burgoyne surrendered more than 6,500 men; four years later almost to the day, Lord Cornwallis was forced to surrender at Yorktown, Va., effectively ceding victory to the new United States. Britain’s fundamental mistake was the assumption that most American royalists would remain loyal. Many were ambivalent about rebellion but not suicidal. What also swung the balance was that, after Burgoyne’s capitulation, France and Spain began to support the American patriots. In this myth-shattering book, Mr. O’Shaughnessy drives home the point that, despite losing America, the British saved Canada, the West Indies, Gibraltar and India, securing the foundations of a global empire.

The Empire Project, by John Darwin (Cambridge University Press, 2009)

The Empire Project book cover

“The Empire Project” relates in engaging style the rise, decline and fall of the British Empire, which at its height extended over a fourth of the earth’s surface. The downfall was not a linear descent. The empire revived in spirit and purpose before finally collapsing in the 1970s. John Darwin’s chronicle is an exhilarating read, above all because of the pen portraits of the proconsuls, including Lord Curzon in India, Lord Cromer in Egypt and Sir Alfred Milner in South Africa, as well as Cecil Rhodes, who “offered a winning combination of imperial patriotism and colonial expansion.” In the empire’s last phase, Lord Mountbatten, the last viceroy, presided over the “ruthless” partition of India and the creation of Pakistan. In Mr. Darwin’s judgment, at least one million people died in the “mass madness” of communal violence. But “Mountbatten was lucky”: British forces emerged from the upheaval virtually unscathed.

Gandhi: Prisoner of Hope, by Judith M. Brown (Yale University Press, 1989)

Gandhi Book Cover

A book written a quarter of a century ago, “Gandhi: Prisoner of Hope” has stood the test of time. Judith Brown is by no means uncritical of Gandhi, pointing out, for example, his egregious mistake in advising the Jews in Nazi Germany to adopt methods of nonviolent protest. He could be quirky, unpredictable and contradictory. At first he believed that India’s independence could be achieved by keeping faith with the British, but he changed tactics in the interwar years to nonviolent resistance. Ms. Brown argues that civil disobedience never made British rule impossible. Its aim, for India’s nationalist movement, was a “quest for legitimacy.” As for Gandhi’s legendary fasts, they provided an opportunity for “theatre and symbolism.” Gandhi envisioned an anarchic utopia that would be self-regulating, with a non-industrialized economy based on agriculture. India today is a far cry from his vision. Yet as a figure of moral principle, Gandhi expressed to many, then as now, “eternal truths in a changing world.”

The Viceroy’s Journal, by Archibald Wavell (Oxford University Press, 1973)

Wavell

Field Marshal Archibald Wavell’s diary is stunning in its honesty and clarity and in its incisive criticism of British rule in the Subcontinent. In 1941, Churchill sacked Wavell for failing to defeat Rommel in North Africa, then appointed him Viceroy of India in 1943 as a stopgap, hoping that he would hold the line politically. Churchill first realized his mistake when he discovered that Wavell was at heart a poet (and in 1944 published a famous anthology, “Other Men’s Flowers”). In his diary Wavell recorded, shortly after his appointment, that Churchill “has always disliked me and mistrusted me, and probably now regrets having appointed me.” Wavell wrote that Britain’s wartime cabinet, when it came to Indian affairs, was characterized by “spinelessness, lack of interest, opportunism.” He was sympathetic to Indian nationalism and got on well with most of the Indian leaders—except Gandhi, whose “one idea for 40 years has been to overthrow British rule and influence and to establish a Hindu Raj; and he is as unscrupulous as he is persistent.” Wavell proved to be one of the few who could stand up to Churchill, and he did so time and again, though their last meeting ended on a whimsical note. After his defeat in the 1945 election, Churchill asked Wavell to “keep a little bit of India.”

A Prince of Our Disorder, by John Mack (Harvard University Press, 1976)

A Prince Disorder

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This article was originally published in the Wall Street Journal on June 19 2015.

You may also like:

Dharitri Bhattacharjee’s review of Judith M. Brown’s Gandhi: Prisoner of Hope

Jack Loveridge recommends The Viceroy’s Journal by Archibald Percival Wavell, ed. Penderel Moon

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