Hamish Gobson’s diary: the view from across the Uisge
Monday 26 February 2024
IT IS BECOMING increasingly obvious why the current Scottish government wants to undermine the independence of the judiciary. They are terrified of what a genuinely free court system would do to them if the police would only present their allegations against the several delinquent leaders in a timely fashion. The ladies on this island who sit beside their firesides and study the tealeaves tell me they hear the distant sound of heavy steel doors clanking shut with the crisp finality that Rolls-Royce doors used to have in a very different context.
The Nationalists took control of the police a decade ago by centralising the force under a Minister of Justice who linked the Cabinet with the Chief Constable. Now even the First Minister, Continuza McQatar, wants to get his hairy hands on the judges by means of the new Regulation of Legal Services (Scotland) Bill. The plan is a direct assault on the rule of law, as a senior judge explained recently. Unfortunately, Scottish civil society is so sunk in phone-based apathy that there has been remarkably little comment on this outrage.
I was put in mind of all of this recently while reading the only biography I have ever found of the controversial, and in my opinion important, Associate Justice of the US Supreme Court, James Clark McReynolds (1862-1946). He was an early illustration of “cancellation” by the termites of the political correctness movement.
The book is a work of family fealty on the part of a relative, Ann McReynolds Bush, and is not well-presented. But with that caveat, James Clark McReynolds: Defender of the Constitution is well worth reading for the fascinating information it contains about his judgements on the Court – which, after all, is the main thing (and explains why he was cancelled). In the end, he was the victim of his own consistency in a world where insubstantial “values” changed with political expediency.
McReynolds was born in a small town in Kentucky near the Tennessee border. His father and grandfather were both surgeons in the Confederate Army. He was a clever boy and won the Founders’ Medal at Vanderbilt University in Nashville. He then passed out first in his class from the University of Virginia Law School. After a decade of successful lawyering in Nashville, he was brought to Washington as clerk to a new Justice of the Supreme Court, from where he blossomed into a Wilsonian Democrat, and was made Attorney General of the United States in 1913.
That was soon followed by elevation to the Supreme Court bench, on which he served from 1914 to 1941, retiring at the age of 79. The reason for his posthumous “cancellation” was his unbending opposition throughout this period to the unconstitutional (as he argued) approach of President Roosevelt when implementing his New Deal policies without the explicit authorisation of Congress. Instead, Roosevelt used Executive Orders, transforming him, McReynolds argued, into an elected autocrat (McQatar’s dream).
McReynolds was the longest-serving of the four justices who opposed much of the New Deal power-grab. The others were Willis Van Devanter, Pierce Butler and George Sutherland, who was half-Scottish and born in Buckinghamshire. McReynolds, who also had Scottish antecedents, was no lonely crank. He had support in the Court and his views were widely shared outside it. He is still respected by those who call themselves “originalists”, by which is meant they want the American legal system to reflect the values of the Founding Fathers as represented in the US Constitution.
Ms Bush closes her book with a quote from George Washington, the original originalist, if I may put it that way. In his farewell address to Congress in 1796 he warned of the McQatars of his day, who he called “cunning, ambitious and unprincipled men”. He went on to say how important it was to confine such people to “their respective constitutional spheres in the exercise of their powers [because] the spirit of encroachment tends … to create, whatever the form of government, a real despotism [which is] the customary weapon by which free governments are destroyed.” (p. 203)
The sentiment behind that was clearly reflected in McReynolds’s and Sutherland’s opinions. They talked of dangers to the rights of free people posed by “men of zeal” who, whatever their motivation, are “without understanding”. (p. 158) The result of such realism was that the Supreme Court struck down several key measures, like the National Industrial Recovery Act of 1933. Even in the brief period it operated, the NIRA was a failure, mainly because it did not have support of the business community (Continuza take note!) The result was that the US economy never really pulled out of the Depression until rearmament rescued it from 1940 onwards. By contrast, Neville Chamberlain’s far more McReynolds-like handing of the British economy (i.e. “sound money”, which McReynolds called sanctity of public contract) in the mid-1930s when he was Chancellor of the Exchequer (1931-37) resulted in expansion rippling out from southern England without needing the artificial stimulus of war. This was John Betjeman’s Metroland.
From around the time of Kennedy and the radical growth of state interventionism, it became taboo to criticise FDR, with the result that McReynolds’s reputation sank till it was little higher than that of Bluidy Mackenzie in Scotland today. Perhaps they were embarrassed by the way FDR tried to subvert the Constitution in his famous Court-packing plan of 1937, whose principle target was McReynolds. That was an extreme and dangerous ploy, exceeded in its danger to the government of laws not men only by Watergate – in relation to which Nixon told David Frost that “when the President does it, that means that it is not illegal.” (Trump is running the same argument at the moment.)
A recent scholarly article about McReynolds said that “his face had such a Satanic look that in it there is a certain charm.” (see left) The Supreme Court Historical Society, an otherwise admirable and useful body, published a biographical essay on McReynolds in 1994 which accused him of most of the fashionable crimes of the day, from personal unpleasantness to anti-Semitism. Most of all, as in the Horizon scandal, the message was that he was alone. He was supposed to be an isolated figure on the court whom no other Justice would co-operate with. (An externally published, summary version can be read here.)
But that is simply not true. He wrote over five hundred majority Opinions for the Court and only 150 dissents, two thirds of which were specifically aimed at new Deal measures and their results. Despite the facts, McReynolds’s name is mud today. Yet he was a good man who, in retirement, anonymously financed the adoption in the US of 33 British and Belgian children orphaned in the Blitz. After he died, he left nearly $200,000 in cash (a huge sum in those days) to various hospitals, old peoples’ homes, churches and the Vanderbilt Law School.
It is only a pity that we do not have more people in public life who understand that values are eternal and should never become the playthings of politics. But there will always be political chancers who are happy to degrade anything if it helps boost their squalid careers, especially in a gerrymandered parliament like Holyrood. Faute de Secretary of State for Scotland, it is the role of the police and courts to keep them in check. And in those courts we need people with the strong moral core of people like McReynolds. No system can save us if the character of the people in charge is rotten or weak. Petain’s France proved that.
“It’s not the ships, it’s the men that sail in ’em.”
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Hamish Gobson lives on the Hebridean isle of Great Todday (Todaidh Mór) and features in Nicola Sturgeon: the Years of Ascent (1970-2007) – A Citizen’s Biography of a Driven Woman in a Drifting Parliament (Ian Mitchell, 2022) – available on Amazon and also reviewed here by Tom Gallagher.
Also written by Ian Mitchell is The Justice Factory (second edition): Can the Rule of Law Survive in Twenty-First Century Scotland? which considers the future of liberal democracy, taking Scotland as an example.
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Photo of Supreme Court painting of Justice McReynolds by Bjorn Egeli – http://www.oyez.org/justices/james_c_mcreynolds/portrait/, Public Domain, https://commons.wikimedia.org/w/index.php?curid=2786652
