Evening star., 1934-12-23
SUPREME COURT WATCHES
NEW DEAL In SERENITY
Becomes Curious, However, About How
MIRA. Issues Orders That May
Send ViOlators to Jail.
BY MARK SULLIVAN.

y
event at Washington was the
L manner of the Supreme Court
as it came to consider the
New Deal, its complete poise, the
complete serenity of its judicial spirit,
its utter absence of excitement or
strain. or even excessive serious
ness-indeed, its smiling urbanity as
it questioned the Government lawyer
who came before it to defend a New
Deal statute. 1t happened that the
Government lawyer was nervous and
embarrassed, because an error of his
client, the administration, had put
him in a position that was absurd,
almost comical.
The manner of those justices-who
compose, without much doubt, the
most respected civic institution in the
whole world today, a Gibraltar of
confidence in a world that otherwise
is jittery from pole to pole-their
manner conveyed assurance that the
Supreme Court continues to be what
it always has been. To expand that
phrase, to say what the Supreme
Court always has been," would re-
quire whole book of tribute to the
qualities which inhere in the court
as it was set up in the Constitution,
and in the fine body of traditions the
court has built up through 1873 years.
For the present purpose, the one
quality of the court appropriate to
mention is its completely judicial at
titude as between the citizen and the
Government.
1t may not be universally known
that, in countries other than the
United States and Great Britain,
courts are, as a rule, conceived of
as agencies of the government, as
having a special relation and obliga-
tion to the government. Under the
tradition and form of British law,
extended in America, our courts are
conceived as independent of the Gov
ernment; as given the privilege and
charged with the duty and the au-
thority of looking with absolutely
equal eyes upon all who come before
them-even when, in any contro-
Versy, one litigant is the Government
and the other is citizen.
Right Jeopardized.
II that statement is trite, the eX-
cuSe for repeating it is that one of
Americas present needs is the re-
statement of ancient virtues in our
form of government and society.
virtues we have taken for granted, as
much as the air we breathe-Some of
which we are now in peril of losing
and which we can only save by taking
up once again the long struggle by
which they were originally won.
Although the New Deal has been
with us for nearly 20 months; al
though it has emitted executive de-
crees and other regulations and rules
to the number of, literally, thousands,
nevertheless no case arising under it
arrived before the court until this
month. The delay many of us sur
mise, was due to the wish Of the Gov
ernment. 1t has seemed to us that
the Government lawyers have been
hesitant to let cases involving the New
Deal come before the Supreme Court.
The Government has been more reluc-
tant to submit its cases than the citi-
zens whose fates are involved.
The initial case, which came before
the court on the 10th of this month,
had to do, in part, with the indictment
of a citizen of Texas for violating a
provision of the oil code. 1t turned
out that this provision had been in
the original code as promulgated by
the President, but was inadvertently
omitted from a revision of the code
and remained non-existent for full
year. Meantime, the unfortunate
Texan-I quote his lawyer speaking
before the Supreme Court-"was ar
rested, indicted and held in Jail for
several DAYS for violating a law
that did not exist, but nobody knew it. :"
This led Mr. Chief Justice Hughes
and Mr.. Justice Brandeis to inquire
Just how these ''laws"-they are really
Executive orders of the President-are
written and promulgated. As Mr.. JUS
tice Brandeis put it: "Is there any
official or general publication OF these
Executive orders? Is there any way
in which one can find out what is in
these Executive orders?" And as the
Government lawyer replied to these
and more searching questions, "smiles
appeared on the usually solemn faces
of the justices and the crowd of law
yers that filled the room"-1 am quot
ing from a description by careful
Washington correspondent, Mr.. Theo-
dore c. Wallen of the New York Her
aid Tribune.
Court Is Curious.
That episode had to do with care
lessneSs of the administration in pro-
mitigating many so-called laws, un-
der which citizens may find themselves
in jail. This carelessness did not en-
tail from the court anything more
serious than a request by the court
that the Government file within two
days a memorandum showing to what
extent orders and regulations having
the force of law are filed and pub
lished.
But the fundamental question in
volved in N. R. A. is whether those
thousands of executive orders and
codes are law at all, whether they
have any validity-even when cor
rectly written and made public. This
is the great, broad fundamental ques-
tam upon which the court will pass:
Are the N R. A. codes law, or are
they not? Adverse decisions by the
court would make the whole Of N. r.
A. as vain in law, as futile to produce
compulsion, as impotent to regiment
the citizen and make him march in
step, as Gen. Hugh Johnson bawling
at an Army mule, across the MisSis-
sippi River.
One key question before the Su-
preme Court-one of perhaps three
that will determine the validity of
the whole New Deal-is, to put it
briefly whether N. r. A. codes are
law. They purport to be law. Under
them many citizens have gone to Jail,
hundreds have been fined, literally
thousands have been intimidated by
threats of prosecution, millions, prac-
tically every citizen, have been re-
strained in their actions or otherwise
affected. For enforcing the codes
there is numerously manned "divi-
einn Of litiUa finn of UJocbipotop