New-York tribune., 1918-07-14
<("HE court divided 5 to a. J"
This sentence in reports
of decisions of the Supreme

come almost q matter of routine IN
certain classes of cases--thos Sc cases
into which enters what might be
called liberalism" in the interpre
tation of the law, cases in which So
cial welfare, the rights of man, seem
to conflict with the letter and tradi-
tions of legalism. The child labor
case was one cf the latest of these;
others very recently have been the
Toledo contempt case, the anti
unionization injunction case, the
Washington private employment
agency case and the Paine lumber
case.
Liberalism is term that varies
greatly according to the things it
has to measure. Literally it would
mean a willingness to extend action
beyond the close letter of the law;
to be liberal in allowance for action.
Actually, in the present at least, it
means a desire to take into account
the complexities of the present world
and to allow room for them in the
laws that must always be imper-
fectly fitted to a world that is in
nux.
Liberalism
And Dissent
By such a measure the Supreme
Court is constituted in peculiar
pattern. Justice Brandeis, who had
20 undergo close scrutiny before
the Senate would confirm him to the
bench, is undoubtedly liberal. Yet
Justice Holmes, who preceded Justice
Brandeis to the bench by some four
teen years, and who is veteran of
the Civil War, is almost as marked
in his liberalism. If the records of
recent cases are to be consulted, it
liberalism on the side Of Justices
Brandeis, Holmes, Clarke and JUS
tce McKenna, who has given twenty
Years to the court. 1t was these four
justices who dissented in the recent
child labor decision. Justices Holmes
and Brandeis are often paired in dis
sent, as they were in the Toledo
newspaper contempt case. This pic
tlre of the court, however, is imper-
iect without the shading on the other
side. 1t was Justice Pitney who gave
the opinion that employers had the
right to enjoin unions from trying
10 nnionize their mines Brsndeis,
Holmes and Clarke were the dis
Senters- 1t was Justice McReynolds,
more or less accepted by observers
Of the court as leaning to strict
recognition Of precedent, who an
no1nced the illegality Of the Wash
iNgton state law aimed at private
employment agencies. The dissent
came from the same sources in this
case, with the addition Of Justice
McKenna. And when in the Paine
lumber case the court upheld the
rights Of unions 80 make agreements
TO work on all except non-urion and
rrison-made materials, the dissent
was from Justices Pitney, McKenna,
Van Devanter and McReynolds. In
the New York Life Insurance deci-
SION, involving the right Of state
10 control interstate insurance COM
panies doing business within its bor-
ders, Justice McReynolds upheld the
company in his opinion. The lineup
vas changed somewhat in this dis
ssnt, the disagreement arising from
Justices Brandeis, Clarke, Day and
Pitney. When Chief Justice White
upheld the Adamson act, Justice
McKenna concurred with his opin-
ION. but Justices Day, Pitney, Van
Devanter and McReynolds dissented
Justice McKenna upheld the Oregon
ten-hour law, and in this case-in
which Justice Brandeis did not take
part-the chief justice dissented, and
with him Justices Van Devanter and
McReynolds.
important Decisions
Show Equal Division
The situation in the Supreme
Court at the present time, where
important decisions are made by d
court almost evenly divided, has
tended to cause remembrance of the
fact that the Supreme Court has
evolved naturally. President Taft
had the unique opportunity
shared only by Washington, Jack
son, Lincoln end Grant-of recon
stituting a large part of the court
with the appointment of five justices.