Evening star., 1935-10-06
Supreme Court
Holds the Stage
By Queen l.. Scott.

ascend the bench October to under
take their historic task of okaying and
blue-penciling acts of Congress.
The President is confident that the
real surprise will be handed to his
enemies. They have gone far out on
limb with positive assertions that the
court will scrap just about every phase
of the New Deal. Mr.. RooSevelt'S oppo-
nents, on the other hand, are equally
confident that all surprise packages will
be delivered to the White House, which
counts on saving large parts of its
program.
Their idea is that by the time the
Supreme Court finishes the job ON hand,
it will leave the New Deal an alpha
betical shambles, with its pieces scat
tered as widely as were those of the
N. r. A. after the justices spoke last
May 27.
Actually, the court, taking up its
duties Monday, holds the key to the
future of the present national admin
istration.
President Roosevelt tells the country
that his reform program is 'Substan-
TALLY complete" But that assurance
is based on its acceptance by the Su-
preme Court. He has promised that
his efforts during the next year will be
directed toward bringing Federal outgo
and Federal income nearer to balance
without new taxes. Yet that promise is
qualified by court acceptance of the
New Deal farm program.
The President assures business that
he has no new ideas for revived codes
or for other plans of regulation. But
again his position may shift if the court
frowns upon unemployment insurance,
or old-age insurance. or on laws that
place Federal authority back of labor's
collective bargaining ideas.
Even political plans depend on what
the Supreme Court does in the months
just ahead. So, too. do plans for the
session of Congress that opens next
January 3.
If the Supreme Court kills process
ing taxes writes an end to cotton con-
troll, clips the wings of the T. v. A. and
balks at Federal protection of organ
lied labor, then the Constitution will
become an important issue in the presi-
dental campaign. Action of that kind
too, would change plans for a quiet
1886, session of Congress into plans for
a feveriSh rebuilding of the New Deal
on a different constitutional base.
Today the Supreme Court dominates
the inside planning of the Government.
But for two years the court and the
Constitution scarcely entered the minds
of New Deal planners, except in a
casual sort of way.
On advice of Felix Frankfurter, Har-
ward law professor. and Donald Rich
berg, then general counsel for what
was a booming N. r. A, the Govern
ment deliberately lodged the courts.
Industrial leaders joined with them in
this maneuver. Industrialists thought
that recovery magic might be wrapped
up in the plans. New Dealers figured
that if they could maneuver to keep
the new laws out of the courts, they
would dig themselves so deeply into
the life of the country that they could
not be dislodged, Constitution or no
Constitution.
So unconcerned were Government
strategiSts over possible court objection
that they went blithely ahead making
almost no preparation for defense.
F. Homer Cummings Attorney General,
the man who would bear the brunt of
any legal attack on the New Deal al
lowed the Department of Justice to be
turned into haven for deserving
Democratic lawyers. Standards of COM
petence were lowered to point where
newspaper men and other observers
commented about it openly
Then, last Spring, the President and
his advisers began to get a bit wor-
ried about the Constitution and the
courts. The long delayed legal attack
began to shape up.
Mr. Cummings undertook personally
to argue before the Supreme Court the
right of the Federal Government to
repudiate its gold clause contracts. He
won his point but was a. bit roughly
handled by the justices. Mr.. Richberg
hurried to get test of N R. A. and
shaped up defense along the lines of
his favorite theory of the Constitution.
The Supreme Court unanimously and
unceremoniously demolished his theory
and with it the N. R. A. codes.
Overnight the picture changed.
Equanimity gave way to excitement.
Quick shifts were made in the Depart
ment of Justice. Last-minute efforts
were made to build up the quality of
legal talent in Government service In
terests affected by the New Deal. slow
to institute any legal attack during the
first two years, suddenly swamped the
Government with their attacks.
Now the general assumption seems to
be that the court is going to deal as
harshly with remaining New Deal agen-
cies as it did with N. r. A.
An inquirer discovers that even the
executives of alphabetical departments,
under legal fire, wonder about the quail
ity of the defense that will be made of
the laws under which they operate.
They are inclined to question both the
ability and the zeal of some of the
Governments legal defenders.
On the other hand, those charged
with New Deal legal defense think that
executive officials are too jittery. They
are confident that the attackers are
due for the major surprises when the
Supreme Court begins to grind out its
decisions.
X X
That raises the question: What ac-
tually is the appraisal of impartial
authorities on the probable outcome of
the coming test of New Deal laws? APP
praisals involve guesswork, but the best
Judgment obtainable in Washington
seems to be as follows:
Processing taxes, on which the main
New Deal farm program is built: Two
to one that they will be upheld out
right, or overruled on some basis that
can be remedied by Congress.
Bankhead taxes, involving tax to
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