The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1934-10-22
Liberal Viewpoint
-BY DR. HARRY ELMER BARNES


ID DICTIONARIES violently opposed to the
N New Deal have been pining their hopes on
the supreme court Fully conscious Of the rec
ord of this tribunal in setting aside liberal leg
islation in the past, they have entertained fond
expectations that the court will not fail the
Tories in the critical day when it will have to
pass on the constitutionality of crucial New
Deal legislation.
Therefore. they have jumped with nl-con-
cealed delight upon General Johnson's assertion
that in formulating and enforcing New Deal
legislation he had been in constant touch with
that old counsellor, Justice Brandeis."
They have sought to imply that If the justice
did talk with General johnson about New Deal
policy he thereby disqualified himself for rem
dering decisions upon the constitutlonallty OF
the New Deal. Indeed, well-known reaction
airy professor Of law, Dean Edward T. Lee OF the
John Marshall law school, has burst into the
papers with the declaration that
1T would be entirely proper for any de-
PENDANT appearing before the supreme court in
a matter involving the constitutionality Of the
national industrial recovery act or its admins
tration to ask that Justice Brandeis should not
sit in the case"
To anyone at all acquainted with the history
of American government and the record of the
supreme court all this appears to be absurd
tempest in a teapot" If General Johnson &C
tually did talk over matters with Justice Bran
des it is a tribute to his intelligence and proof
that he was DESTROYS of obtaining the best pos
sible advice.
THE justices of the supreme court are not
Il walled off from the rest of the world when
they accept post on this august bench. One
would have to be very naive to suppose that
judges who have come from long and d1stln-
guished practice in corporation law Immediately
cut off all communication with their old crories
in the world of big business and finance. Yet
there is no whisper Of suspicion when some
leading mogul of finance capitalism mentions
the fact that he has talked about public affairs
with some ultra conservative justice on the SUI
preme court bench. Apparently, compromise
of judicial impartiality exists only when lib
eral judge holds converse with liberal layman
1t certainly would be improper for any JUS
tice of the supreme court to divulge to an ad
ministrative official the secret deliberations of
his colleagues on any important pending case
But it is certainly no breach of even the most
rigorous judicial etiquette or procedure for
justice to discuss public matters with selected
friends.
Indeed, if he does not do so, he is likely to
get so much out of touch with currents events
as to be a very poor judge If he is to possess
the desirable information and intellectual alert
ness, he must naturally supplement his reading
by intelligent and discriminating discussion with
friends.
TT would be very reckless for an outsider to
L presume to surnse Justice Brandeis' views
on the New Deal. But if we may judge by his
past opinions, he certainly hardly can be re-
garded the father of several crucial meas
ures in the New Deal. He has been vigorously
opposed in the past to those tendencies toward
big business and monopoly which have certain
y been to a considerable degree forwarded by
the MIRA
Dean Lees charge that Justice Brandeis has
been long known as radical is grossly mis-
leading. He is no more than an old-fashioned
liberal who has been greatly shocked at the
ganized thievery and the destruction of private
property made possible by finance capitalism,
the holding company and corporate manipula-
tons.
Professor Lee asserts that the slightest inter-
ference with the absolute separation of powers
in our government would mean IAN end of our
indestructible union of indestructible states"
History hardly bears him out.
We now know that in the bred Scott case a
Justice of the supreme court wrote to President
elect Buchanan asking him to write to another
Tupreme court justice and urge definite de-
cisiOn by the supreme court. The latter Judge
answered Buchanan, told him when the court
would render its decision and what that decision
would be-all this ten days before the decision
was handed down. Yet the heavens did not fall
Indeed, historians did not reveal this fact until
1910.