Evening star., 1933-10-29

JuSIlCcS oloAlS Will JIlc IIIcc pIOSIcS>
sives and making progressive ma
jority of to HAS become charac-
teristic lately. 1t is not. Of course,
uniform. Sometimes one of the mid
dle-ground justices goes one way and
one the other. Occasionally the two
middle-ground justices go with the
conservatives. BY no means all the
questions before the court are consti-
tutional. OF those that are, not all are
delicately balanced between conserva-
tive and progressive. Many decisions
are unanimous. some are to l or
to l.
But the type of decision here de-
scribed has become noticeably usual
the four conservative justices going
one way and composing only a minor
ity. while the three progressives and
the two middle ground justices unite
to make a majority.
Cases to Come Up.
The questions that wIIl be thrust
upon the Supreme Court by what the
Government is now doing, are numer-
GUS, and they go deep. In the discus
sion provoked by these new Govern
ment activities. 1t is commonly said
that the Supreme Court must decide
whether America is to be individualist
as in the past. or collectiviSt; that
country cannot be half individualist
and half collectivist, half American
and half Russian.
That. like most epigrams, is but
half-truth, and like all half truths, mis-
leading.
BY process very slow. very gradual,
and completely wholesome, one indus
try after another in America has been
taken out of the field of unrestrained
lndlVldualism and put under State con-
troll. An early one was railroading. A
little later the public utilities were put
under State control
Just lately. even before the present
administration took power, certain other
industries were on the border line be-
tween those completely individualist.
and those State-controlled Some two
years ago. one of these borderline cases
came to the Supreme Court from Okla
homa. The State of Oklahoma, in
! effect made the manufacture of ice
! one could set up new ice plant in
Oklahoma until after getting consent
from the State government, as in the
case Of public utilities An enterprisng
individual started an ice plant without
asking consent from the State govern
ment. In due course the case came
before the Supreme Court. In the court
the majority decision was to the effect
that ice-making is not vet a public
utility; that any individual wishing to
do SO could invest his money in build
ing an Ice plant. and could operate it
without interference. But strong
argument to the contrary was made in
dissenting opinion by the progressives
on the court
Effect Upon Business.
Many Of the questions that will now
go before the Supreme Court as a re-
suit of N. R. A. are in this field.
N. r. A. indirectly-this Is stating it
very loosely and not in terms of legal
thought-has the effect of putting many
ordinary businesses into a status re-
sembling that Of public utilities. or
under measure of State control. If
N. R. A. were to go the full length of
some who speak for it, every business
would be put under Government con-
| troll: and it would be illegal for a man
to set up new grocery store without
first getting, in effect, consent of the
Government.
This is one broad issue that will come
before the Supreme Court whether
America shall 90 on with gradual and
orderly process of adding one industry
at time to the category of public
utilities utilities presently ice manufacturing.
whether, as N. r. A. implies. America
shall make one broad jump, taking
practically all industries and occupa-
tions into the field Of public control
Much of the talk about the Supreme
Court deals with the opportunity
President Roosevelt may have to make
changes during the time he Is in the
White House, whether that be one term
or two terms lasting until 1941. To be
very elementary about this, the Presi
dent has no power. of course, to remove
judge-a Judge can be impeached only
by a Congress and in the process of
impeachment a President has no part.
But this is purely academic. Nobody
anticipates any change in the Supreme
Court except such as may come through
death or retirement. Some self-chosen
and radical spOkeSmen Of the new
deal" make excited suggestions about
what Congress, under Mr. Roosevelts
leadership. may do to change the COM
plexion of the Supreme Court, or to
abridge its powers. No such suggestion
comes from Mr.. Roosevelt; and it is
safe to assume that such suggestions are
very distant from rejecting the Presi-
dents mind. Such changes as Presf-
dent Roosevelt may make In the court
will be limited to filling vacancies
caused by death or retirement.
Retirement Provisions.
Justices of the Supreme Court can
retire with pay, if they wish. upon two
conditions-they must have reached the
age of 10 and they must have served
on the court for 10 years.
Of the nine justices. four meet these
conditions at the present time. For
such comparatively slight and inexact
significance as it may have, their
former political Affiliations and their
intellectual leanings as between con-
servative and progressive. are given:
Justice Louis D. Brandeis Of Massa-
chusetts, born 1856, now n years old:
appointed to the court 1916, has served
II years. Democrat, progressive.
Justice Willis Van Devanter Of Wy
oming, born 1859. now "a years old;
appointed 1910. has served % years.
Republican, conservative.
Justice James Clark McReynolds of
Tennessee, born 1862, now II years old:
appointed 1914. has served 19 years.
Democrat. conservative.
Justice George Sutherland OF Utan,
born 1862, now II years old: appointed
1922 has served II years. Republican,
conservative.
But while attainment of the age of
70, and 10 years of service, gives a
Justice the option to retire, there Is no
requirement on him, either Of law or OF
custom. Indeed, the precedents are to
the effect that justices do not and are
not called upon to take account of any
fixed year in their sojourn upon earth
as the time when they should decide
no longer to be judges. The last occa-
sion when a justice retired voluntarily
was that of Justice Oliver Wendell
Holmes, and he had reached the age OF
90 That was 20 years after he had had
the option to retire, and during all
those 20 years the attitude of his fellow
| justices, of the bar and of the public
was one of satisfaction that he contin-
ued to keep his learning, his experience
and the extraordinarily fine quality Of
| III. v,,i,d a1,o{Jo hln for tia y1yh1ir Gerry.