The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-02-28
The Supreme COurt-Its Il relations to the
Pending Conflict.

We suppose it to be good generalship at
every new movement of the enemy to recon
nOtre his strength, with a view to discover
the most effective disposition which can be
made of our own.
The strength of the conservative position
for immediate operations lies in the President
and the Supreme Court. But these advan-
tages are defensive and temporary. They are
of little use except as a means of gaining time
to rally and recruit our forces. Unless we
can elect President Johnson's successor, has
fidelity to the Constitution is but transient
advantage. So long as there was reason to
hope for the final closing up of this contro-
versy during his term, it was not necessary
to look to the Presidential election as the key
of the political situation. But, since the
recent action of Congress cuts off expectation
of relief previous to that event, it is necessary
to extend the scope of our oalculations.s
We must estimate the possibilities that lie
beyond the Presidential election, in order to
act intelligently in the preliminaries of the
election itself If any portion of the conserva-
tives, North or South, think that we shall be
as well off without the next President as with,
they will of course, oppose any tactics to
improve our chances of electing him. For our
part, we do not wish to see this point decided
without discussion, but after discussion; and
if, on a fair comparison and balance of advan-
tages, the South think it best to let the Presi-
dental election go by default, it is not for us
to question their right of abstention.
In the actual position of affairs, the Supreme
Court is of no more value to the South than
the President. In the absence of the South
from Congress, the adverse majority being
sufficient to overrue the Presidents veto, he
iS 1lpo w 70 cta
sentinel at the door of the Supreme Court A
two-thirds majority of Congress avails nothing
against decision of the Court; and the APP
pOintment of the Judges being vested in the
President, Congress can accomplish nothing
by increasing their number. But if the Re-
publicans elect President Johnson's successor,
they will thereby gain control of the Supreme
Court, and thus remove the only barrier that
stands between their absolute will and the un-
protected South. If the conservatives do not
! carry the next Presidential election, the South
is delivered over to six years more (siX count
ing from this date) of unrelieved oppression.
a radical President could veto every bill re-
pealing the acts of this and the succeeding
Congress, and whatever revolutions might
take place in popular sentiment during the
four years ending March A. 1873, the long term
of the Senators will prevent our getting two
thirds of the Senate and passing repeal laws
over the Veto There is, accordingly, no visi-
BILE hope of early justice to the South, except
through the Presidential election. Meanwhile,
the conservative majority of the Supreme
Court is a valuable temporary advantage.
But this advantage is too limited, and is
held by too frail tenure, to be an important
element in any long-sighted political cacula-
ton. The tenure of the Judges is, to be sure,
stable in one respect, since they keep their
offices during good behavior. But the con-
servative advantage in that Court is held by
the slender thread of a single life. There are
five conservative and four radical Judges; the
oldest men, appointees of former Democratic
Presidents, being among the conservatives,
and, in the usual course of nature, most likely
to die. The loss of one conservative Judge
! would make a tie and no law can be declared
unconstitutional but by a clear majority.
/ President Johnson could not replace a con-
servative Judge by new appointment because
! Congress, at its last session, passed law
reducing the number of Judges to seven,
forbidding any new appointments until, by
| the occurrence of vacancies, that Limit is
/ reached. %
The consequence is, that if case testing the
cOnstitutionality of the Sherman law should
| be made up by the South during the coming
season, it would depend upon the life of every
one of five men, some of them far advanced,
! whether the decision, a year hence, would be
favorable. The chance is certainly worth. the
| trial. but is subject to this contingency.
! Whatever may be the immediate prospect OF
! life, it would be against the ordinary course OF
nature for the conservative majority to remain
| till the close of a new Presidential term, or
even far into it. The Supreme Court is, at
best, but a temporary dyke to help stay the
floods while we are building more permanent
embankment. If we do not carry the Presi-
dental election, the Supreme Court will at
once cease to afford amy protection. In the
| meantime the death Of one venerable old man
may, any day in the year, take away all its
restraining power.
Practically, the question is no longer what
may be done this side of the Presidential cleo
ton, but what may be done by mea1sso of it.
Under the most favorable circumstances, de
cision of the Supreme Court cannot be obtained
before next winter and by that time we are
on the very eve of the Presidential election
If the Supreme Court, in setting aside the new
| law, could also restore the Southern states tt
Congress, or insure the counting OF their elec
toral votes, decision next winter would be II
ample season. But the sole effect OF thel
decision would be to remand things back tC
the condition in which Shenman's mll louho
them. The admission or exclusion Of members
is business over which the Supreme Cour
| has no jurisdiction or control. Inc elec
toral votes will be counted in the presence
of both Houses and under their superntend
ence and when the result is declared by th'
President of the Senate, there is no trlpuna
that can review it. If the new law should b'
! declared unconstitutional by the supreme
Court. next winter Congress would pass new
act. prescribing other terms OF restoration
and as the compliance of the Southern states
S,-itb tbe new conditions could not be sub
mitted for approval until the following ses