The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1909-10-10
Justice Moody's Illness MAY
Prove Blow to Gov
eminent.
WILL MEAN LOSS
OF SEVERAL CASES
Known as Progressive" His
Vote Will Be Sorely Missed
on Decisions.

be one OF the most important in recent
years, because it viii bring 10 the high
est bench a number Of cases which pre-
sent the very fundamentals of the Hep
burn law, and some others which bring
up the Sherman antitrust law In new
lights.
In recent years the Supreme Court has
had an uncomfortable habit Of deciding
these big fundamental cases by the
flve-to-four division With a single
member OF the court unable 70 sit in
a case with such a division the lower
court would be sustained
And to the grave concern and. exceed
ing worriment Of the Government law
yers just at this time Justice Moody Is
III at Haverhill, Mass, and from latest
reports is unlikely to be able 20 sit with
the court at this October term.
Justice Moody a Progressive.
Justice Moody is the particular man
on that bench on whom the friends of
the Sherman law and the Hepburn act
and like progressive statutes rely 10
give sympathetic ear to their pleadinrs
Mr.. Moodys habit and attitude of mind
have been perfectly plain to all men
since he was a member Of the lower
house Of Congress: better known. Of
course. as a result Of his service as Al
torney General In that post he was
the one man who. during the Roose-
welt Administration, identified himself
thoroughly and unquestionably with the
Roosevelt program He was the bie
lawyer Of RooseveItism: and he was
promoted by Roosevelt to the Supreme
Bench, still impregnated with the gem
eral views he had entertained at the
Department OF Justice.
On the bench Justice Moody has been
hard worker, and It is no secret that
certain Of his opinions have given great
JOY TO the Government lawyers, strug-
Cling TO save the railroad, trust. and
corporation regulation statutes from
being torn 10 pieces. And now. inst
al the time when the very crisis in All
ms business IS getting I'D 10 the Su-
pSeme Court. when three or four de-
cisions are about TO be made in cases
IN which the decision will be vital
Justice Moody is likely TO be unable
10 sit with his cOllcagu
There was concern for some weeks
lest Mr.. Justice Harlan, another jurist
with an instinct for the progressive in
dlcial view Of the big public questions.
might also be ill., He has so far re-
covered that Il is stated he will take
1oicing over his recovery was followed
by more depression. the result Of the
announcement that Justice Moodys
condition was once more serious.
Case May Be Lost.
The most serious thing about losing
Justice Moody from the bench at this
term, as the Government lawyers view
81. is that in the big cases now coming
up, it is necessary to reverse the lower
court II the Government is TO get any
thing. Take the Missouri river rate
Il
Interstate Commerce Commission in
the circuit court It comes TO the su-
preme Court If the Supreme Court.
with eight men sitting, should divide
evenly. the case could not be reversed;
the decision Of the circuit court would
BE- sustained. and the Hepburn law
would have received a severe blow, Tor
f. that Missouri river case in the lower
court Judge Grosscup wrote In sthe
majority opinion shat the Hepburn act
conferred on the commission no au-
thority whatever TO make an order af-
feeling the relationship of rates.
such a case as that. on the record the
Supreme Court has been making along
these lines from the Northern SecUri-
ties case 70 date the Government is en-
titled 10 win by just about TO 4. With
all the members OF the Supreme Bench
in their places the lower court should
be reversed and the case decided foi
the broader view OF the Interstate Com
missions powers. But with an even
. numbered court, an equal decision sus-
Iairs the lower court, and &c is a
curious fact that on the big. vital cases
which are coming up this session. the
Government lost IN nearly every case
3n the lower court.
Tha is why there is wallng and worry
Al the Department of Justice and the
1nterssSte Commission these days. The De
partmert Of Commerce and Labor comes
in too. but the famous Tobacco trust
ina r~f0feh - NtTrrgurr a ffnrUpFa-
tions dug up a vast amount OF testt-
mony, IS going 70 reach the court this
term. II IS set down for argument Oc-
tohcr u. The whole question is raised
of whether the Government shall be
permitted 20 enjoiu the trust from fur
Ther. continuance Of conspiracy iG re-
Etraint Of trade.
Another Bad Outlook
In the Willamette lumber cases. tho
whole question Of the constitutionality
OF the Hepburn law and OF ths
suhiciency OF the court review provision
OF the law. viii come up. This IS tho
particular sort OF case on which tn,
proRnosticators would figure out a court
OF five 10 four. and Justice Moody Is
necessary TO make the nfth IN favor of
sustaining the Government. and WITH
him absent the lower court would D..
sustained and the law badly mutIIated
or practically knocked ont.
mere are a number or other sea
which go into the fundamentals of tho
rate law. The October term and Tho
coming January term have long been
looked forward % as ne time for clear ice
ing up pretty much ~ the big unau-
fwcred questions about the rate and thf
antitrust acts, nd determining at least
just whore matters stand, what has
been accomplished and what has not
and thence 70 measure of what is
needed 10 be done for the strengthen
ing Of these laws.
That the whole policy Of the Govern
menrs legislative bra uch, covering a
long period Of years. should thus bt
5copordiZcd because on the Illness or one
man in the Supreme Court at such
critical fine is one OF the remark ablC
things possible under the American
system Of government. IL would not DC
possible In any other country i'm the
world. But long experience with the
uncertainties of judicial construction
has made the Government specialists ir
these matters very sharp to recognize
the elements which make up the equal
ton. They understand the record 81
every judge on an phases OF the ques
tons: they weigh and balance All thf
factors. ard Just al this time they arc
perfectly willing TO admit that about
the uniuckieEt thing that could possibly
have hauUpUrf F0V them has Hapnpnaf