Evening star., 1936-01-19

TleICc oQtItI 90
Harlan F. Stone SO
Owen J. Roberts SIS
Benjamin NJ CardoZo- 62
1t will be observed that the JUS
tices, at the time they were appointed
to the court, were not old men. In
the nature of things the Supreme
Court must always be elderly or old
for they must be middle aged or ell
derly before they are qualified for
appointment.
The relation between the present
ages of the justices of the Suprere
Court and the coming presidential
election can readily >e made clear
We all know taa+ President Roosevelt
was and - Irongly dissatisfied with
the decisions of the court adverse to
know that Mr. Roosevelt wants to go
on with the New Deal. We know that
he cannot go on with it so long as
the recent decisions of the Supreme
Court stand in the way. And we
know there are only two ways for Mr..
Roosevelt to get around those deci-
sions.
Amendment Method Avoided.
One way is to change the Consti-
tuition. That is the direct way. 1t
would consist of a simple process Of
putting the proposed change in words,
submitting it first to Congress for a
two-thirds vote, ard then to the
States for approval of 36 out of the
48. This method of getting around
the recent decisions of the Supreme
Court we can infer quite clearly. Mr..
Roosevelt does not intend to try. At
least it is apparent he does not in
tend to attempt it in the near future.
Let us consider then the second
way of overcoming the obstacle to the
New Deal which lies in the recent
decision of the court The second
way is really several ways: Mr.. Roose-
welt could have Congress pass an act
requiring that all justices retire at
the age of TO- That would take of
the bench five of the nine justices who
decided unanimously against the N
r. A. part of the New Deal. 1t would
remove four of the six justices who
decided against the New Deal with
respect to Triple A. The vacancies
would be filled by appointment by
President Roosevelt. The perfectly
valid assumption is that Mr.. Roose-
velt would appoint only justices known
by him in advance to be men who
would hold the New Deal constitu-
tional. A Senate containing heavy
majority of Mr.. Roosevelt's party
would confirm his appointments.
There are yet other ways: Mr..
Roosevelt conceivably could have Con-
gress enlarge the court from a pres
ent to perhaps 13 or Is or more.
and fill the additional seats with JUS
tices of his own choice.
Election Is Factor.
One of the ways has direct bearing
on the coming presidential election.
Mr.. Roosevelt will, of course, continue
President until next January, as a
part of his present term If he is
reelected next November he will con-
tinue President until January, 1941.
During these five years the course of
nature might bring several vacancies
on the Supreme bench. After all, men
over 10 are in an advanced stage of
life; they are within reach of the
sharpshooter." (Yet it is interesting
to recall that the most recent justice
who died was "a at his death and
had remained on the court until he
was 81; his name was Oliver Wendell
Holmes, and up to the day he left
the court, one year more than 80 years
of age. he was by universal testimony
one of the most alert-minded and in
all respects able justices who sat on
the court at any time)
But with five justices over 10 and
seven over IS, 1t is clear that whoever
Is President from now until 1941 may
have several vacancies on
the court to fill. If the President is
Mr.. Roosevelt, if he is reelected in
November, no one can doubt that
he would appoint justices whom he
could rely upon to reverse the recent
decisions and make the New Deal pos
sible. 1t is not only the presidency
that is at stake in next November's
elections; it Is, quite likely, the Su-
preme Court and the Constitution.
Let no one think that -tatement
Is sensational; it is merely the same
as saying that next November's elec-
ton will determine whether the New
Deal is to go on or be arrested. .~l
everybody knows now, as a result of
the recent court decisions. that the
New Deal cannot exist alongside the
American Constitution - 1t now