The times., 1901-06-07
Circulation sta .ement.
The snnrcmc Court.

is the manner in which il has affected
and viii continue to affect the prestige
of what for hundred years the Amer
lean people proudly regarded as the
grandest judicial tribunal in the world
1t was implicitly believed that in tbs
Supreme Court of the United State.
legal issues of great national import
were sure Of just decision regardless OF
all partisan considerations or questions
of business expediency.
The Dred Scott decision was sharply
criticised by the extreme anti-slavery
element, but it cannot in fairness, be
said that the prestige of the court suf-
fered any in consequence of its action
in that matter, for its position was firm,
logical. and consistent. Moreover, it
was in harmony with what had been
the prevailing sentiment of the country
through all the earlier period Of its ex-
istence, for it is well known that the
anti-sIavery spirit had developed little
strength for nearly three-quarters of a
century after the adoption of the Fed
eral Constitution.
When, apparently Influenced by po-
Hteal considerations, the court reversed
itself in the legal tender cases, public
confidence received something Of a jar
Still. the general disposition was to con-
slider the courts action leniently be
cause of the peculiar, not to say extra
ordinary. circumstances of the case. A
mere reversal Of itself does not Ordi-
narily, furnish ground upon which fair
" to impugn the intellectual integrity
of a court; because old rules and prin-
ciples are being constantly overthrown
and new ones established. And where
the old doctrine is clearly wrong it
ought to be overthrewn, witIs-the usual
saving or vested rights. Besides. when
courts have thus overturned their for
mer decisions it has generally been
after substantial changes in the per-
sonnel of the courts. 1t was thus that
the Supreme Court reversed itself in the
legal tender cases; and the criticism
was Ieveled not so much at the action
OF individual judges as at the supposed
fact that new members had been ap-
pointed with reference TO their known
views upon the question.
But when with no change Of member
a
case the court turned a complete SOM
ersault upon the consutuuoaality Of an
income tax, the prestige Of the tribunal
received a staggering blow. Without
the faintest glimmer Of new light that
was visible TO anybody else, one Of the
Justices simply changed his mind. thus
converting what had been a majority Of
the court into q minority. No court can
thus shift its position and shuttle with
questions deeply affecting the public
welfare without losing something of
the respect and confidence of the peo-
pie Especially is this true when the
change is directly in the interest Of TIE
wealthy classes, and has the immediate
effect Of unjustly Increasing the bur
deas Of the poor.
The feeling engendered by the man
ner in which the court toyed with the
income tSx has been intensified many
fold by the literally astounding charac- /
ter Of its decisions relative to the con /
stitutional status Of our new posses
sions. II the court had adhered con- /
sistently 10 the position taken in the /
de Lima case. and by a vote Of five u I
-four held that Porto Rico was complete !
" under the aegis Of the Constitution /
for all purposes, while the substantial /
division among tEe judges might have /
left room for corresponding differences /
of,opinion among the people, the court /
would have lost nothing in public conf /
dence and respect The people would /
simply have concluded that it was a
close question upon which there was
ample room for disagreement. And |
muah the same view would have been /
taken If the majority had been consist
emily the other way.
But when one Justice speaking for
himself and four Of his associates,
hands down an opinion declaring in un-
mistakable language that Porto Rico is
American territory, in all that the ex-
preston implies, and almost at the
same moment the same Justice. acting
for himself and four different asso-
cistes, hands down another decision
holding that the island is not American
territory at ALL but merely territory
subject TO American Jurisdiction, it is
inevitable that in the minds Of vast
numbers II people such action viii Gre
ate a serious doubt Of the mental integ-
rity Of at least one member Of the court |
The action is worse, in some respects,
than that OF the court In the income tax
case. because in that case one Of the
Justices frankly avowed a change Of
opinion, while in these later cases JUS
tice Brown simply faced both ways at
the same time, and with one breath, as
# were, declared that Porto Rico was
and was not a part Of the United
States.
It does not meet this point to say
that the Justice attempts to differen-
tiate between the cases. The differen-
t.ation amounts to nothing unless it
rests upon a sound legal basis, and a
logical one also, for it has been well
observed that the law is the very re-
hnement Of reason. 1t is because JUS
tice Browns attempted distinction be-
tween the cases does not rest upon such
q basis that his action is being subject
ed TO storm Of adverse criticism. The
closest analysis OF his two written
opinions utterly fails TO show that his
attempted distinction is well taken. In
the Downes case he is at issue with the
whole eight Of his associates. and also
at issue with his own expressed views
tn the de lima case. If in the last
named case he had made the distine-
ton between American territory and
that ,8rbfol ID 81 |