The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1923-10-31
By LOWELL MELLET

!
II q perhaps, has there been such
IL widespread study of the prob
lem Of the Supreme Court as now.
There have been, of course, times
! OF fiercer resentment and louder out
cry against the courts arbitrary over
ruling of the peoples purposes.
When, by the bred Scott decision,
the Supreme Court set up the strange
doctrine that the people by legislation
could not control slavery, four years
of civil war resulted.
When. by the Legal Tender decision,
the court held the currency authorized
by Congress, while good enough for
the soldiers fighting the country's
battles, was not good enough for the
bankers who were financing those
BATTLES at considerable profit to them
selves, the people were again greatly
aroused.
They cheered Congress for chang
ing the number of judges and Presi-
dent Grant for appointing two new
members who, it was known in ad.
vance, would join in reversing the
courts decision.
When. by the income tax decision
the court held, in effect, there are
some incomes In this country too
large to be touched by taxation, the
people patiently set about amending
the Constitution so the Supreme Court
could not possibly misinterpret 1t on
that point.
Personnel Is Resented
Sut the resentment of the public
in the cases cited was directed large
ly against the members of the
Supreme Court. 1t was not directed
so clearly as now against the theory
under which the Supreme Court acts.
The people have begun to understand
that to obtain insurance against the
courts abuse of poNer, they must
wipe out this theory.
A reason for this may be found in
the fact that in recent years the
tendency Of the court has been to use
its power in this manner more and
more. In the whole history of the
United States Supreme Court, that
body has undertaken to find only fifty
acts Of Congress unconstitutional.
But ten Of those fifty decisions were
rendered In the past five years! An
average of two such decisions a year
for five years. whereas from the time
Chief Justice Marshall set UP the
pernicious theory in 1903 it was forty
eight years before the Supreme Court
made use Of 1t again
Two Votes Unanimous
In three of these cases. out of the
ten, the vote In the Supreme Court
was to 4. In two others, it was
to 3. In two others 1t was Z to 2. In
only two was it unanimous, though II
is the hoary tradition o. the court
that no act of Congress should be de-
clared unconstitutional unless It is un.
constitutional beyond reasonable
doubt. You win find the court ex.
pressing this caution. gravely. solemn
ly in opinions to which only five sub
scribe and against which the four
others have written their firm dis
sentl
The increasing use of its dubious
to say the least-power, probably Is
responsible for the spreading of the
opposition In quarters where formerly
it did not show itself. Lawyers al
ways are loath to criticise the courts.
Lawyers make their living practiclng
before the courts, of course, but be.
yond that II is part OF their creed to
believe in the courts infallibility. Now.
however, one finds many lawyers in
the ranks of those seeking q remedy
for the present situation.
Real Battle On
That the defenders of the courts
supreme power over the other branch.
es Of the Government realize there is
battle on was indicated in the re.
cent observation of Constitution
Week. They took the stump every
where to cry down popular dssatis-
faction with their own Interpretation
OF the Constitution. Much propagan-
da is being disseminated to arouse the
belief that the Constitution itself ia
being attacked, where as the move
ment to control Supreme Court is pri-
r1ar1ly Back-to-the Constitution
movement
The mower Of tho Supreme Court is
certain to be big issue in the com
Ing Congress. 1t will probably take
not to form of angry oratory, but Of
careful consideration Of the manner
in which the Constitution can be
amended so the judiciary may be set
back in the place intended for It
just one of the three coordinate
branches of the Government.