Evening star. [volume] (Washington, D.C.) 1854-1972, 1935-02-12
COURT EXPECTED
TO GUARD RULING
Precedent Exists, However,
for Advising President
First on Gold.
BY DAVID LAWRENCE.

IOuTG OF IIlS OIlllcu oVooCS nha sAiS
public are at the moment in an
extraordinary state.
The New York Times editOrially
raises the question as to whether Pres
ident Roosevelt will be told the gold
clause" decisions in advance so that
the Executive branch of the Govern
ment may be prepared for the con-
tingencies that may arise.
After deploring the differences that
have been drawn from the fact that
the court gave out bulletins on two
successive Saturdays stating it would
not hand down opinion in the gold
cases on the two Mondays thereafter,
the Times says all this guessing is
hurtful TO the dignity of the court
and adds:
Moreover it creates suspicion
that other departures from the estab-
lished conventions of the Supreme
Court have been made in this case
Its importance being so great, its pos
sible effect on the Government and
the administration being so vital may
it not be conceivable that a quiet and
confidential hint CT what the nature
of the decision will be has been con-
veyed to the PRESIDENT"
Precedent for Action.
On the face of it. this looks like
an unprecedented suggestion and ar
unheard-of procedure, but it turns
out that one of the Supreme Court
justices did precisely that thing in
notifying President ELECT Buchanan OF
the way the bred Scott case was to
be decided before the public knew it
The information is given in book
by that eminent authority, Charles
Warren. who has written the most
authoritative history of the Supreme
Court of the United States which is
now available. Mr.. Warren. a Boston
Democrat and former Assistant At
torney General under President Viii.
son. spent years in research into the
habits of the Supreme Court. In
reciting the circumstances preceding
the bred Scot decision. he writes;
Judge Catron took the Unusual
course of writing confidential letter
to Buchanan. the President elect. Feb
ruary 10. 1887. in which he informed
Buchanan that the constitutional
question would be decided by the
court Though he gave no statement
as to the way in which it would b.
decided. and in which he asked
Buchanan to drop Grier line saying
how necessary it is and how good the
opportunity is to settle the agitation
by an affirmative decision of the Su-
preme Court the one way or the other
He has no doubt about the question on
the main contest, but has been per-
suaded to take the smooth handle for
the sake of repose.'
Justice Grier Replies.
Buchanan apparently complied with
Catron's request and wrote to Justice
Grier who replied. February %, in
an interesting letter. giving to
Buchanan. in strict confidence. a full
statement of the manner in which the
judges had decided to treat the case.
Such a letter would not at the
present time be regarded as one OF
strict propriety. but at the time it was
written it was not an fnfrequent occur
renee for the judges to impart, III
confidence. to an intimate friend or
relative the probable outcome of a
pending case. Judge Curtis had so
written to his uncle as to this very
case during the previous year: Judge
Story frequently INDUCED in the habit.
and it seems to have been regarded as
a proper practice. provided the seal
of secrecy was imposed"
Mr.. Warren goes on to give the fun
text of Justice Grier's letter 10
Buchanan, which made it possible for
IL
indicate that the question would De
settled by the court.
1t is interesting to note that the
majority opinion Of the court. holding
that a Negro could not be a citizen
and that Congress had no power to
exclude slavery from the Territories.
was delivered on Friday. March 6. and
that the dissenting opinions were de-
livered on Saturday. March T.
There have been rare instances In
which the court has delivered its
opinions on Saturday. and this is
one reason why it was supposed last
week that the court would do so In
this instance.
Importance in Secrecy.
As a matter of fact. the chief i'm
portance at the moment about Sc
crecy is that no individual should
gain private advantage through adj
vance knowledge and thus be able in
some way to influence stock exchange
markets. Also it is very unlikely that
the court would feel that a co-ordi-
nate branch of the Government is in
any way obliged to advise the Execu-
tive of what course is to be pursued.
Precautions to prevent leaks in the
court have been taken for many dec
AIDES now. but there really is no reason
except one why the executive branch
Of the Government should not be
told. il the court thinks it is con-
structively desirable. The reason is
that the Roosevelt administration is a
party to the case, having devalued
the dollar and impaired. as it is al
legged, the contracts between the Gov
eminent and its citizens. Also, the
press has told of the steps that are
to be taken to circumvent decision
by refusing citizens the right to sue
in the Court of Claims.
1t may be that the advance knowl-
edge would permit the Government to
ask for legislation. which, in itself,
would be tantamount to a public an
nouncement OF what the decision was
to be- Hence under all the circum-
stances. precedent or no precedent,
the Supreme Court of the United
States is mostly likely to keep its
secret and to keep it from everybody
outside the court, whether in official