Evening star., 1936-05-24
Endurance Contest Over
the Constitutions
BY OVEN L. SCOTT.

fundamental-may be decided by the
November election.
The Nation now knows that six out
OF nine Justices of the Supreme Court
regard many of Mr.. Roosevelt's expert
ments as in conflict with the basic law
Of the land. They have ruled against
an important part of his program on six
out of eight occasions.
That raises the question: Will the
President strike out for an amendment
to the Constitution giving the Federal
Government more power; will he seek
by legislation to enlarge the court or
limit its powers, or will he accept the de-
cisions as final?
The answer appears now to be that
none Of these courses Is to be followed.
Just before the Supreme Court passed
on the right of the Federal Government
to repudiate its contract to pay debts
in gold, President Roosevelt was re-
ported ready to defy the court If the
ruling should go against the Govern
ment. After N. r. A. was blown up by
q unanimous Supreme Court decision. he
was on the verge Of going to the people
for q broader grant Of power. But by
the time of the six-to-three decision
that ended the original A. A. A. pro-
grams, the President had changed his
mind.
Does that mean. then, that he is ac-
cepting defeat and will no longer press
for new Federal powers?
Not at ALL on the basis Of accumulate
ing evidence. Rather. Mr.. Roosevelt Is
seen to have developed technique for
meeting the court problem that in
pd
in November.
The technique is to emphasize the
sharp division of opinion on constitu-
tional questions within the Supreme
Court itself.
When five Justices on May 18 ruled out
the Guffey little N. r. A." for the soft
coal industry as in direct conflict with
the Constitution, with Chief Justice
Hughes Of the opinion that part OF the
law was valid, and three other justices
of the opinion that much Of the law
was valid, the President stressed that
division.
He remarked to newspaper men that
to him the Supreme Court decision was
informative and of educational value.
adding that 1t showed the different in
terpretations placed on the Constitution
by various parts of the judiciary and
various judges.
The President and his advisers note
two things. The first is that three JUS
tices, Brandeis, Stone and Cardozo, are
a solid minority bloc in the court, hold
ing a view of Supreme Court functions
sharply in conflict with that Of the
majority.
During the present term of the court
these three justices have stood together
in twelve dissents. In the previous
term, Justice Brandeis dissented ten
times. Justices Stone and CardoZo each
dissented eleven times. They have stood
together as minority in the court for
the last four years. They interpret the
Constitution In a way that might open
the door to several Of the sort of expert
ments the New Deal has conducted.
The second thing noted by the Presi-
dent is that out OF nine justices, six
are more than seventy years Of age and
eligible for retirement at full pay. Hints
have come at various times that two
of these justices. Van Devanter, who is
seventy-seven, and McReynolds, who is
seventy-four, are considering retirement.
Retirement Of those two justices, who
side consistently with the conservative
group within the court. would enable
Mr.. Roosevelt to appoint members hold
ing more nearly to the constitutional
philosophy Of the present minority. In
that event. todays dissenters would be
tomorrow's ruling court majority.
The President believes that then the
way would be opened to fashion legis-
lation broadening Federal activities,
v.,;fb iy1tn
Court objection. He is banking on re-
election to give him that opportunity.
X
Chief Justice Hughes said this past
week. in writing his opinion of the Guf-
fey coal act:
IF the people desire to give Congress
the power to regulate industries within
the State, and the relations Of employers
and employees in those industries, they
are at liberty to declare their will in
the appropriate manner, but 1t is not for
the court to amend the Constitution by
judicial decision
different view now Is held by the
administration.
Donald Richberg reveals what that
view is. Mr.. Richberg is back again as
a confidential adviser to the President
after slipping temporarily from the
scene when N. r. A. was blasted. The
change in the attitude of the President
toward the Supreme Court can be at
tributed to the influence Of the former
N. r. A. general counsel.
Mr.. Richberg opposes amendment by
the usual methods of the commerce
clause of the Constitution or its general
welfare clause. TAe reason given for
his opposition is that he believes an
amendment would let down the bars too
far and result in an obliteration OF
State lines and too great dominance
of the Federal Government.
His ,view>is that the Supreme Court
should do what Chief Justice Hughes
said 1t should not do-amend the Con-
stitution by judicial decision.
Speaking on April Of this year, Mr..
Richberg said:
"The process Of amending the Consti-
tuition by construction has been recog-
nized as necessary and beneficial by the
most eminent expounders Of constitu-
tional law"
Then he went on to say. after de-
tending the necessity for court review
Of acts Of Congress:
Such decision of the Supreme Court
must be accepted and respected as de-
termining, for the time being, that which
is the law. But if the people OF the
United States do not desire that law
they should not be required to amend
the Constitution merely to change de-