The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-06-08
Liberal Viewpoint
by DIR. HARRY ELMER BARNES

A PARAMOUNT public issue rlgnC now Is now
N to circumvent the assassination of progress
and social justice by the supreme OouIC "a Vic
United States.
New Constitutional amendments are pro-
nosed. one of these would give Congress those
powers over economic and labor conditions
which were denied to it by the Court in the MA
decision Another would take away from the
Court altogether it's power to pass upon the
constitutionality of Federal legislation.
1t is apparent that either Of these amend
ments would require time, perhaps several years.
In the meantime, there is need for speedy action
if our economic system is to be saved from
collapse. 1t is doubtful if the NRA would have
proved adequate, and now we are deprived OF
its contribution.
Hence a number of commentators are IN
favor of increasing the size of the Supreme
Court This could be accomplished by simple
and direct congressional legislation, and done irl
a hurry.
An appeal to the history of the Supreme
Court reveals the fact that this not only can be
done but also that it has been done several times
in the past. In most instances, indeed, Such
action has taken place in critical and contro-
versial periods like that which exists today.
THE Constitutional authority of Congress to
i determine the size of the Supreme Court
is perfectly clear The Constitution reads that
The judicial power of the United States shall
be vested in one Supreme Court, and in such
inferior courts as the Congress may from time
to time ordain and establish"
Acting on the basis of this sweeping and
general authority Congress passed the First
Judiciary Act in 1882 creating Supreme Court
of six members, including one Chief Justice.
Oliver Ellsworth who became the third chief
Justice exerted large influence in formulating
this law and in determining the number of
judges
The first important change came in 1907, a
few years after John Marshall had been APP
pointed Chief Justice. 1t was under his regime
that the right to declare laws unconstitutional
had been asserted by the Court, which had
adopted rather thoroughly the Federalist theory
of a strong national government. At this time,
the membership of the Court was increased to
seven, in part to enable jefferson to appoint
judge friendly to the policy of his party.
The next enlargement of the Supreme Court
accompanied the controversy over state rights
and slavery. Roger Brooke Tamey, who was
later to deliver the famous bred Scott decision,
had recently been made chief justice. In 1887,
the number Of judges was increased to nine.
There were no more changes until the period
Of the Civil War, when the number was in
creased to 10 to enable Lincoln to secure more
certain judicial support for his war policies. The
struggle between Congress and the President
after the Civil War brought the next change
This was a decrease rather than an enlarge
ment. Congress did not desire to give Presi-
dent Andrew Johnson any opportunity to ap-
point members of the Supreme Court friendly
to himself and his policies. Hence, the number
Of judges was reduced from ten to seven.
JOHNSON had hardly gone out of office when
j a bitter Constitutional struggle arose over
the legal tender issue. The Administration was
committed to the resumption of the gold stand
ard and specie payment. Hence, in 1870 the
number of Judges was increased from seven to
nine in order to assure certain support of the
gold policy. In spite of many subsequent pro-
posals to increase the number of judges. the
Court has retained its membership of nine dur
ing the last IS years.
This brief historical survey indicates that the
enlargement of the Court is perfectly feasible
and Constitutional Its membership has been
increased in lesser crises than the present.
The argument also seems plausible. If the
membership of the Court should be increased
to II members. Mr.. Roosevelt could appoint two
new liberal judges, possibly Hiram johnson and
Felix Frankfurter.
This suggestion was especially popular just
after Justice Roberts shifted from the liberal
to the conservative wing of the Court in the
Railroad Retirement Act decision 1t was pointed
out that if men like Frankfurter and johnson
had been on the Court, the Administration
would have been upheld.
But the unanimous decision against the Ad-
ministration in the NRA case amply demon
strated the futlity of any such measure. Even
Brandeis. Stone and Cardoza deserted liberalism
for legslism. This decision showed that even
liberal judges cannot be trusted to deliver in
pincheS.
The only sensible solution is to eliminate
judicial review if we wish to preserve democracy.
If We must have dictatorship let it be the
dictatorship OF young man with vision and not
a dictatorship of nine old men, the majority of
whom are stepped in an archaic economic phil
osophy and are houndering in a moraSs Of
moldy legalistic tradition.