The Waterbury Democrat., 1936-02-29
BEHIND
 THE SCENES
 lN
 WASHINGTON
-sv RODNEY DUTcHER-i Democrat Washington COEre-
 gnondentl

Observers Believe Supreme
 Court First Was Against
 IVA, Then Changed Mind
 ... GOsslps Credit Hughes
 With Turning Tide .. Four
 Factors Seen as Swaying
 Justices in Their Final
 Ruling.
 Washington, Feb. 20.-Lawyers may differ among themselves as to the breadth or narrowness of the IVA decision, but almost any one of them will still tell you he would give his right eye-or, ct least, couple of minor toes--to know just what went on in the secret U. s. sue preme court conferences which pro- duced the opinion.
 Only nine men know. But the deduction of those who best know the court and its ways is that there was more turmoil among the black robed gentlemen than at any time previously in this generation.
 Their idea is that court which so frequently has whacked at New Deal legislation must have been forced into 8 bit of dither before it handed down 6 decision favor- able to the New Deal.
 The administration lawyers, in- cIuding some of the most clear headed ones, have 1t all figured out that conservative majority of justices originally wrote an opinion which declared IVA and the sale of power unconstitutional and that in the 60 days elapsing before the decision the majority was persuaded to change It's at- titude-with the exception of Jus- tice McReynOlds, who Opined IVA was accomplishing unconstitu- tional purposes.
 (Chief Justice Hughes Butler, Sutherland, and Van DevaIlter agreed IVA had the right to dis- pose of electric energy developed at wilson Dam and to operate trans mission lines, while Brandeis, Rob- erts, Stone, and Cardozo said the suing minority stockholders of the Alabama Power company had no standing and that their appeal shouldn't be heard)
 Change of Heart Rum0red
 Aside from the long delay on the opinion. there Is "evidence" that an original dissenting opinion was such as to cause a change. The cora- curing opinion of Brandeis, Stone, Cardozo, and Roberts, agreeing as to constitutionality, bore evidence that some of 1t had once been part of a dissenting opinion.
 Emphasis by Brandeis, who deliv- cred 1t, on historical evidence that In earlier years the court had been loath to declare acts of congress un- constitutional seemed to indicate Q presupposition that the majority had declared an act unconstitutional in this case.
 In the subsequent legal gossip, Hughes has been given credit for "seeing the light" and persuadlng Sutherland, Butler, and VanDe- vanter to go along with him. Motlvatlng Hughes, authorities on the court suggest, must have been . dissenting opinion little short of ir-raising. For some time the liberal Brandels- Stone- Cardoso minority has been in- creasingly nlain -SDOken in accvis- ing the majority of bad faith and disregard of precedent and tra- ditional principle.
 The theory is that the majority's opinion reached Q new climax which would publicly have split the court wide open, by showing that the majority was flying in the face of precedent for 50 years back. Possible Influences Cited
 High up in the administration 1t Is believed that certain external facts also finally influenced the court:
 1.-The definite romantic popu- larity of IVA, including common belief in Its reasonableness, and the fact that to ruin 1t would be even more unpopular than the de- cision against AAA.
 2-The storm over the AAA and the danger to the courts prestige inherent in cumulative effect of Q series of opinions arousing mass resentment.
 S-obvious intention of the ad- ministration to make use of 6-3 and 5-4 divisions of the court to charge lack of infallibility.
 1.-The attack on the AAA deci- sion by Senator George w. Norris Perhaps They Wrangle
 Such explanations cannot be talk on as gospel, and the court guards Its secrets well, But enough jus- tices have whispered to their sec- retaries in time past to make t plain that the court sometimes lights and wrangles like Q legisla- tive body and that Q majority opin- ion may be drafted ten or dozen times before 1t is enunciated from the bench.
 New Dealers feel rather good ! about the decision, though reallz- ing that court majority may soon show in another case that the decision was . marrow one in- deed.
 Politically, the visible effect you can expect Is a soft-pedalling of criticism by members of the ad- ministration itself--such as secre- taries Ickes and Wallace-but a continuance of attack from pro-ad- niinistration senators, whose words likely will have the adminiStrA- t!on's secret appreciation.
 | Copyright. 1886, NEA Service, Incl