The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1923-04-01
Fess Strengthens Progressive
Groups Fight on NulIifi-
cations of Supreme Bench
CLOSE DECISIONS DOOMED
Leaders Predict Restrictions
Holding Length Of Bar Only
Question to Be Determined
By WINDER K. HARRIS.
Universal Service.

in Congress announced yesterday
that legislation to curb the powers
of the United States Supreme
Court to declare acts Of Congress
and State legislatures unconsti-
tutional would be pressed in the.
next session.
CLOSE DECISIONS FI4AYED.
With the Old Guard Republicans
coming around to the Progressives'
viewpoint. as disclosed in the for
NAL statement OF Senator Fess of
Ohio, published yesterday, the Pro
gressives declared five-to four de-
cisions, by which many important
laws have been nuIlified, are DOOM
ed. The only question to be deter
mined, they said. is how far the
proposed legislation shall 90.
Senator Fess, one OF the staunch-
est supporters of the Harding Ad-
ministration, said he would favor q
bill requiring six out Of the nine
justices to decide laws unconstitu-
tional. q
senator 6OEan 1nIrOQuCGQ III the
last session a bill requiring seven
out of the nine TO nullify a statute.
Representative James A. Frear of
Progressives on the Republican side
in the House, provided IN his soldier
bonus bill last session that eight out
of the nine justices would be re.
quired to declare that measure or
any part of 1t void on constitutional
grounds. Mr.. Frear announced at
the time he would introduce in the
Sixty-eighth Congress general bill
with the same provision.
PROPOSED REVIEW.
The Wisconsin Progressives also
proposed in the last Congress Con-
stitutional amendment giving Con-
Rress the right to fix the number
of members OF the court who could
declare any law unconstitutional.
It also provided for a recall or
judges and review Of decisions by
two-thirds vote OF Congress.
Representative Frear said yeSter-
day. however, he was convinced q
Constitutional amendment was not
necessary to the fixing OF the num-
Der of Judges required to nullify a
law. He will offer his general bill
recurring q decision by eight OF
the nine.
Senator Borah also viii press his
bill fixing the number at seven.
No difficulty Is expected in these
two Progressive leaders getting to-
gether.
The Progressives in the Senate.
headed by Senator La Toilette, ana
I'm the House, led by Representa-
tive John M. Nelson OF Wisconsin,
will line up solidly behind the meas
ure ultimately agreed upon. IT also
will draw considerable support nom
the Democrats, as well as the OLD
Guard Republican support indl-
Gated by Senator Fess.
OLD GUARD BAROMETER.
Representative Frear declared to
Universal Service that the Judg-
ment of Mr.. Fess that at least
two-thirds Of the nine members OF
the court should join In any de-
cision to set aside Federal law
Indicates that sentiment is rap.
inv shaping toward an act Of Con-
gress fixing the number Of judges
In such cases" The Ohio Consti-
tuition, he pointed out, provides all
but one Supreme Court Justice must
agree in that State, (which would
mean eight out of nine applied to
the Federal Court"
Mr.. Frear does not think much
would be gained by fixing the num-
Der at six. He said:
One President recently has mp
pointed four Justices in two
years, while the chief justice, &C
cording to the press, has selected
two of these justices, 80 six
judges out Of nine would be little
majority practice.
CITES COURT PRACTICE.
It takes twelve jurymen to
convict or bring in q verdict In
important cases, so when the de-
cision Of 435 Representatives and
ninety-six Senators and the Presi-
dent, who approves all laws and
appoints all supreme court
Justices, it il an open question
IL their decision should not be
unanimous before any law is set
aside on the ground Of unconsti.
tutionality.
The supremacy Of the court
over the two coordinate branches
OF the Government never has
been more startling than today,
when Congress and the country
| wait Tor months ana sometimes
for years after the enactment Of
important laws before the court
finally decides, frequently by a
| to vote, whether laws are
real or just seeming" laws.
Influences attributed to various
causes ranging from superior or
inferior judicial acumen to in
digestion are credited with re-
sponsibility for some Of the de-
cisions. Meanwhile we wait, hat
in hand. until the court acts.
Representative Frear cites nu.
merous eminent authorities. includ.
ing many ex-Presidents and judges,
In support Of his contention that
the court Is without any constitu-
tional right to declare statutes un-
constitutional. and merely has es-
sumed this Jurisdiction. Senators
La Toilette and Owen Den.) Of
Oklahoma. he pointed out, are
1 among those who do not eoncede
such a right to the court. land in
this they have much support"
MANY high authorities from
Thomas Jefferson down." Mr. Frear
said, declare any such action by
the court is a plain usurpation of
authority never even fnRerentiaIiv