Evening star. [volume] (Washington, D.C.) 1854-1972, 1928-07-17
Smith and the Supreme Court


Smith and the Supreme Court.
Gov. Smith has left no doubts in the
minds Of his countrymen about how hi
stands on prohibition. He believes ir
revision of legislation enforcing the
eighteenth amendment He does not
promise such revision if elected. but
does promise, in effect. to point the
way" 70 revision. There are difficulties
there that he does not discuss, for they
are beside the point. The point is his
personal view, and he has given it with
commendable frankness.
One may wonder. therefore, II those
who bring UP the bugaboo of packed
Supreme Court under a Smith admins
tration-the packing being done to alter
the laws concept of prohibition-are
not doing their cause more harm than
good. The bugaboo appears to have
| been nodded of mud. and mud-slingine
is, as every one knows taboo. If no
mud-slinging is intended however, one
must leave aside the moral questions In
volved, whether Gov. Smith would be
guilty Of packing the Supreme Court
and whether those selected in the
packing" process would be so de-
PRAYED as to allow political and per-
sonal opinion to weigh against their
legal Judgment as members of a court
which In dignity and moral influence
outranks all other judicial tribunals In
the world.
II there was no mud-slinging intend
ed. the question may be approached
from the angle of the possibilities In
volved. Would the United States Sen
ate. for instance, with its power of con-
sent connive with the President of the
United States to the extent of giving
him free rein in filling Supreme Court
vacancies? Granting such connivance.
would there be enough vacancies? There
might be. A Just God, and not political
parties. attends to that. President Taft,
in his four-year administration, filled
six vacancies. But President Taft had
an exceptional opportunity to secure a
working majority to his liking. had he
so intended. No man since Washington
has had one like it. President Wilson,
in eight years, made only three Supreme
Court appointments. Since 1901 the
average number of vacancies during q
presidential administration OF four years
has been PSI.
Since its creation. the average term
Of the members of the Supreme Court
has been fifteen and fraction years
Justice Holmes. with twenty-six years
Of service, and Justice Van Devanter,
with eighteen. are the only members of
the present court who have exceeded
this average. Within the next four
years Justice McReynoids and Justice
Brandeis viii have reached and passed
the average term. But such statistics
ares in reality. of little worth. They do
not treat of such important considera-
tons as age and health. Justice
Holmes is lightweight, Justice Van De-
vanter is sixty-nine. Justice McReynolds
Is sixty-two and Justice Brandeis is sew
enty-two.
There remains one other loophole.
Such critics as James Bryce have point
ed to it as a weakness in an otherwise
almost impregnable fortress. On the
other hand. 1t may be regarded as a
proyidential safety valve, rarely used,
but ready against the time when there
may be some irresistible and revolution
airy wave of public sentiment. The loop
hole lies in the failure of the Constitu-
ton to designate the numerical strength
of the Supreme Court. Congress used
1t once TO cut the strength Of the court
from ten to seven. in order to prevent
President Johnson from making judi
ciary appointments. Again, In 1859,
Grant having succeeded Johnson, Con-
gress increased the number from seven
TO nine. and the new court subsequent
ly reversed former opinion holding
invalid an act Of Congress making Gov
eminent paper legal tender for the pay
ment of debts.
Granting Gov Smith the supreme
power with which his critics fiatter him,
should he be elected. he might order
Congress Immediately to increase the
size of the Supreme Court from nine to
nineteen, appoint TO the new positions
ten alcoholicaIly- minded lawyers and
cause to be reversed the various deci-
sions establishing the validity OF the
enforcement acts.
What is 10 prevent him from doing
this? Viscount Bryce answered the
question in these words: ITO the people
we come sooner or later: it Is upon their
wisdom and self-restraint that the sta
biiity Of the most cunningIy devised
scheme of government will In the last
resort depend" That is one thing. An
other Is that Gov. Smith is an honor
able man There are no grounds upon
which TO base insinuating fears OF hts
moral collapse should he be honored by
his fellow Americans with the highest
ONCE in their power to confer.
Many harsh criticisms are uttered
1 a,,aKa Of ffie fty1aa uiat3 tharn anx he