The Birmingham age-herald., 1920-12-04
SUPREME COURT IS
 REAL, PARTY TEST

| Washington, December 3.-(Special J.
 Republicans of both factions-the stand pat' faction and the progressive" fac
 tion-are enthralled by the consideration
 that within very short time four men-
 bers of the supreme court will retire. or
 will harken to the call from the Pluton- <, ian shore.
 | The four are Chief Justice White, Jus ! tice Holmes Justice Day and Justice McKenna- They have reached the age
 of retirement If they do not retire. they may die This gives the two political | factions reason to speculate. They ad-
 init that the undertaking is a trifle grew
 some, but remind the more aesthetic
 that business is business
 | Senator Penrose. it will be recalled. i gave as a reason for the necessity of the
 election of Senator Harding to the presi-
 dency the fact that the next President
 would in all probability be called upon
 to name four members of the supreme court. Quite recently, the progressive
 members of Congres, those with a chron-
 are, have referred to the Penrose thought, and expressed agreement with l the conclusions reached. And it now de- velops that while Penrose and his fol- lowing will insist that Harding appoint conservatives to succeed the justices they
 think will retire. the progreesives threat | en revolt unless men of vision" be named.
 It is said by certain astute observers l ti.at the split in the republican ranks is
 more liable to occur over appointments to the supreme court than over the
 League of Nations. the tariff or organ I ization of the two houses of CongresS. 1 One progressive is quoted as having said that the test of the Harding ad-
 ministration would be in his first ap- pointments to the highest court of the
 land. The Hearst newspapers in charac-
 teristic manner have condemned the pres
 ent court, and some members of Con-
 gross, unless Harding puts radicals on
 the bench, will advocate changes in the l Constitution which would make the court | more amenable to Congress, to condi- tions, to the desire of the people whether
 either of the foregoing are in accord
 with the letter of the law or not I The supreme court has offended on
 more than one occasion in recent months those who are offended whenever their desires and beliefs are held by law to l be untenable. There was a howl from
 this class of society men when the sl- l preme court refused to dissolve the ] United States Steel corporation. There 4 were cries of distress when it held some 1 time ago that stock devidends were not subject to income tax payments. There was widespread criticism when the court | held tho child labor law unconstitutional i At the present time, there is fear on the | part of certain members of Congress
 with pet legislation up their sleeves that the supreme court would declare I certain legislation unconstitutional. even 1 If it were written the statute books The progressive wing of the republican l party calls the supreme court of the
 United States reactionary-honest. honor able. learned, but reactionary. This is
 said to be true of Chief Justice White particularly. He is essentially e man
 of law and learning but his environment,
 it is alleged. is contrary to the "pulsat-
 ing desire and hope of the people," And. according to this contention the chief | justice and all his associates must re- tire or die for the best interests of the country. They would prefer a bench as radical as Penrose holds Justice Bran deis to be.
 | And thus develops the other horn of the dilemma While the progressive ele- l ment holds that White and his fellows
 prevent the realization of conditions the people have long fought for. the conserv- l alive element in Congress thinks that
 men of the Brandeis type would ultimate l Y destroy the fundamentals of the gov l ernment itself. Justice Brandeis is not 1 in sympathy, it is said to be true. with 1 the manner in which the business worid {, ir the United States conducts itself. He
 is . radical. 1t is claimed. Some men l say that he is socialistic: others are. even less euphemistic.
 l And thus the battle brews- Should the l four justices retire, or pass away. unpre- 1 cedented pressure would be brought to
 bear against President Harding. His 1 lsympathies arc with the conservative ele- l ment. There is no doubt of this At the l same time. 1t would break his heart to make the progressives moro angry than they already are.
 He must of necessity proceed with 1924 forever fixed In his mind