Evening star., 1934-05-27

L Stone OF the united states
Supreme Court as a good
man for the Republicans to nominate
for President in 1896. has entailed
discussion of the relation of the
court to the new deal.
Reflection on this point leads tc
the conclusion that the Republicans
would not do the best possible service
to the country by attempting to draft
Justice Stone for presidential NOM
nation. This judgment has no re-
lation to Justice Stones quality: all
question about that can be answered
promptly-Justice Stone would make
splendid President. Nevertheless
there is a condition which makes it
desirable for the Republicans to find
some one else on whom to bestow
their nomination.
The reason is that the Supreme
Court. in its session that will begin
next Fall, must pass upon the legality
of statute after statute Of the new
deal. No part Of the new deal has
yet come before the court Lower
benches have passed tentatively on
N. r. A., A. A. A.. on the Govern
ments seizure of the peoples gold
and on other innovations In due
course these and perhaps scores Of
other questions will come up to the
Supreme Court for final decision.
None has arrived there yet, and the
court will shortly adjourn for Sum-
mer vacation. In the session begin
ming next Fall, however. the Supreme
Court will be called on to decide a
larger number Of fundamental ques-
tions than in any year in its long
history.
Will Find New Deal Too New.
When say this Is a reason why
Justice Stone should not be taken off
the court to serve the Republicans
as a presidential nominee, the reason
Is not that Justice Stone is needed
to resist the new deal. Far from that.
Justice Stone is a mild liberal, and
as such would be more likely to sus-
tain a larger part of the new deal
than at least six of the other jus
tices. Justice Stone is one of the
three so-called liberals" on the court,
and therefore one of the three most
likely to look sympathetically on in
novations.
Of the liberals, Justices Brandeis, Car
dozo and Stone, will find some of
the new deal to be a little too new
and too radical for even their liberal
tolerance. suspect that even Justice
Brandeis. chief Of the liberals on the
court, may give some of the more
radical new dealers the surprise of
their young lives. I should not be
surprised to see some parts of the
new deal declared invalid by unani-
nous action of all nine justices
The serious reason for not tender
ing presidential nomination to any
Supreme Court justice is that the
coming two or three years Is Pc
culiarly time when the court ought
to be permitted to keep its ancient
inviolability. its traditional immunity,
from political considerations No pos
sible excuse should be given for po-
litical criticism OF the court or po-
litical attack upon is.
Political Raid Meditated.
The reason for this, in turn, is that
political attack upon the court. in
deed a political raid and reorganiza-
tion of the court, has been meditated
by some of the more ardent and
radical Of the new dealers, especially
the younger ones.
When they first flooded Washing
ton, in March of last year, the
younger new dealers were very cocky.
They knew they were going to write
some pretty revolutionary statutes;
they knew that some of their inno-
vations would be contrary to the Con-
stitution, and they knew, therefore,
that the Supreme Court would be
obliged to invalidate some of the in
novations. In short, the young in
tellectuals looked upon the Supreme
Court as the only impediment to their
making over America according to
the pattern of what they thought
America ought to be.
Feeling this way, the attitude Of the
fntellectuals toward the court was one
which. If expressed less classically than
the young collegians would put it,
would say, Watch your step; you
gotta do what we want-or else The
else" was an ingenious and for
midable threat which the more radical
new dealers had in mind 1t ran thus:
The Supreme Court has nine JUS
tices, consequently five make a ma
jority. If the existing ajority should
displease the new dealers, then the
new dealers would have Congress pass
a statute enlarging the court to IL or
13; and to the additional seats thus
created there would be appointed JUS
tices who would sustain the new deal
legislation.
Idea of Minor New Dealers.
That plan was much in the minds
Of some of the new dealers. I rather
doubt If President Roosevelt ever en-
tertained the notion-it would be a
daring thing to do. But some of the
minor new dealers talked of it much.
The suggestion was put in words by
the historian of The Roosevelt
Revolution" Mr.. Ernest K. Lindley.
Discussing the possibility that the
court as now constituted might fail
to embrace the broad social philos-
ophy" OF the new deal, Mr.. Lindley
said:
THE appointment of two additional
justices would permit the bal
ance Of the court to be swung over
to the liberal side"
That was written during 1888, when
the new deal was still at full tide, the
young intellectuals riding high, wide
and handsome. If the attempt had
been made at that time it might have
succeeded. If Congress had been
asked to enlarge the Supreme Court
by two or more additions, imagine
Congress might have done it. At that
time Congress, with its immense Dem
ocratic majority. was enacting about
every measure the young intellectuals
wrote. Congress was passing meas
ures In the exact words in which the
1ntellectuals wrote them. It was a
common saying at that time that Con-
gress was not reading the laws 1t en-
acted.
But I doubt If Congress today would
pass a measure enlarging the Supreme
Court for the purpose Of packing II
with new justices favorable to the
new deal. suspect that fully half
the Democrats in the Senate would