Evening star., 1931-05-31
BY WILLIAM HARD.

DA
The most fundamental topic OF dis
cusSion in Washington during the past
week has been the United States Su-
preme Court The big question is,
Does the Supreme Court today contain
so-called liberal majority?
This question has been raised anew
by the current court decision in which
American citizenship was denied to
Douglas Clyde Macintosh, who admit
ted that he might be conscientiously
opposed to participation in wars which
he thought to be unjust and immoral.
The majority OF the court thought that
he ought to be willing to fight in any
war. no matter what its immortality.
The minority headed by Mr.. Chief Jus
tice Hughes, felt that he ought to be al
lowed like any native-born citizen. to
work that problem out in actual prac-
tice when it arose.
The great personal point in this de-
cision was that Mr.. Justice Roberts re-
Gently appointed to the Supreme Court
bench and usually regarded as mod
crate liberal" voted with the anti
liberal" ajoritv In fact. he produced
the majority. The decision was by five
votes to four votes.
-
The problem thereupon agitating
WASHINGTON is. In which OF the court s
two camps will Mr.. Roberts ultimately
% mostly found?
The same problem has arisen regard
ing Mr.. Hughes. In highly important
tax case this year from Massachusetts
Mr. Hughes joined himself to the So
called "anti-liberal" camp and pro-
duced f1ve-to-four majority in their
favor. In that instance Mr.. Roberts,
the adharnd tho ''lih-
eral' camp and himself composed the
dissenting opinion on their behalf.
In which direction are Mr.. Hughes
and Mr.. Roberts really going? That is
the puzzle that Washington seeks to
solve.
The "old guard" part of the court
consists Of Mr.. Van Devanter, Mr.. Nc
Reynolds. Mr.. Sutherland and Mr.
Butler. who were appointed to the court
by respectively, President Taft. Presi-
dent Wilson. President Harding and
again President Harding.
The young guard" part of the court
consists of Mr.. Holmes 100 years old
Mr.. Brandeis Its years old and Mr.
Stone $50 years old, VINO we're appoint
| ed to the court by, respectively, Presi-
dent Roosevelt. President Wilson and
President Coolidge.
* + =
That President Wilson was able to
appoint both Mr. McReynolds and Mr.
Brandeis to the court is thought by
some to be a sound illustration of the
alleged fact that Presidents are like al
most everybody else in not being able
to know just how judicial fish will
swim after it Is once let loose in the
Supreme Court aquarium.
The remaining two members Of the
court, Mr.. Hughes and Mr.. Roberts
were appointed by President Hoover
1t is the behavior of the Hoover APP
pointees that presents the country with
profound speculation as to the char
acter of the courts immediate future.
The certainty is that Mr.. Hughes and
Mr.. Roberts will average out to be more
liberal" as the phrase goes, than their
predecessors, William Howard Taft and
Edward Terry Sanford, both Of whom
we're appointed by President Harding.
Both MIR. Hughes and Mr.. Roberts
have liberal moments. Or as the
critics Of liberalism" express 1t, both
of them have loose" moments. The
practical inquiry Is:
How often are they likely to have
those moments simultaneously?
The record shows that they have
them simultaneously every now and
then.
y
For instance, there was this year q
case from New Jersey in which the
State Legislature had endeavored to
by fire insurance companies to its
agents. Mr.. Van Devanter, Mr.. Mercy
nolds, Mr.. Sutherland and Mr.. Butler
were duly shocked. They said: THE
restrictions are novel and lack the
sanction Of general assent and prac-
tical experience" They seemingly de-
sired that nothing should be tried fresh
unless it had been tried often before
and was not novel"
Mr.. Holmes and Mr.. Brandeis and
Mr.. Stone, on the other hand, were
duly willing to allow the New Jersey
Legislature to carry out this new vivi-
section experiment upon the New Jersey
fire insurance dogs. Mr.. Brandeis re-
marked that the FIRE insurance business
was full Of "evils" and he was coolly
pleased to stand by and watch new
knife being tried out on them.
On this occasion Mr.. Hughes and Mr..
Roberts shared the GOODNESS and expert
mentalness Of Mr.. Holmes, Mr.. Bran
deis and Mr.. Stone. Thus there was a
majority Of five to four in favor Of TAX
ing chance on something.
4 * 4 X
The same tendency toward auidacity
appeared again this month in the
Indiana case regarding special taxation
upon chain stores. Mr.. Van Devanter,
Mr.. McReynolds, Mr.. Sutherland and
Mr.. Butler perceived with alarm "a
clear and hostile discrimination against
selected body Of tax payers" One
may doubt If all the other members Of
the court thought that this special tax
alton was wise. They all, nevertheless,
agreed to give the Indiana Legislature
an opportunity to find out for itself
whether 1t was wise or not. In this
''looseness" and 'laxness' the adven-
turousness Mr.. Hughes and MFR. Roberts
concurred with Mr.. Holmes, Mr.. Bran
deis and Mr.. Stone. Mr.. Roberts in
deed, wrote the liberal majority
opinion
In another quite remarkable case the
new alignment Of Holmes Brsndeis-
Hughes Roberts produced last January
L. A@A II