Evening star., 1936-02-15
EFFORTS TOCURb|
COURT HELDFU
Hughes Opposition of Eight
Years Ago Seen Possible
Attitude.
BY DAVID LAWRENCE.

1-UO-0 OF O-CO-3 VOIc uldy pIUFC 1uOhC,
If an opinion expressed by Charles
Evans Hughes eight years ago, when
he was not on the bench, Is to be
taken as an indication Of the possible
attitude Of the judicial branch OF the
Government.
Nothing that Mr.. Hughes, of course.
wrote as a private citizen is binding
upon him now that he is member
Of the Supreme Court, but it would
be surprising If the court held valid
any Of the proposals to restrict the
power of the Supreme Court now being
considered by the House Judiciary
Committee, in the event the pending
bills became law.
Mr.. Hughes, in his lectures delivered
sity, said, 1T is doubtful, to say the
least, if Congress would have the con-
stitutional authority to fetter the ex-
ercise of the judicial power by giving
the control of it to the minority of
the court
Justice Stones Views.
Justice Harlan F. Stone also dis
,cuSsed some of the efforts to restrict
the power of the court in speech de-
,livered the same year. namely, 1928,
before the American Bar Association.
He was at that time actually mem
ber of the court. In his address Mr..
Stone said that the question of wheth-
er the Supreme Court could or could
not declare acts of Congress uncon-
stitutional was mo longer debate
able" because it was clear from the
language Of the Constitution itself.
Mr.. Stone also pointed out the COM
plications that might ensue if the Su-
preme Court were restricted in its
right to declare acts of Congress in
valid, while not being limited in the
same way in passing upon acts of
State Legislatures.
The quotation from the lectures by
Mr.. Hughes, published by the Colum-
bia University Press, is, in part, as
follows:
"A certain plausihility has attached
to the proposal that legislation should
not be held to be unconstitutional by
a bare majority of the judges, but that
the concurrence Of six, or even seven,
judges should be required. Difficulties
at once suggest themselves. If, for
example, a lower Federal court, or a
State court, has held legislation to be
unconstitutional, is the decision to be
reversed by a minority of the Su-
preme Court who believe it to be con-
stitutional? 1t is often said, when a
decision of the court is by vote OF
five to four, that one judge determines
the result. This is more striking than
accurate, for the actual decision Is
that of five judges.
Six-to-Three Voting.
"But if the concurrence of six judges
were required, then If there we're four
judges of the opinion that the statute
was constitutional they would in effect
outvote the five and it could still be
said that the vote of one Judge had
made the result possible, as otherwise
there might have been the required SIX
votes. If seven votes were necessary to
hold a statute invalid. then three
judges would outweigh six on judicial
question, and still a change OF one
vote might be determinatire.
1T is urged that, as legislation
should be held to be repugnant to the
Constitution only in clear cases, and
as this is recognized as principle
of decision, division in the court
should be regarded as enough to show
reasonable doubt. Plainly. that sug-
gestion cannot be carried to its logical
limit. If it we're, the action of single
judge in the court of first instance,
holding an act to be constitutional,
would be conclusive, for Is he not a
reasonable man? Or, If that judge
decided the act to be unconstitutional,
and in the Circuit Court of Appeals
two judges agreed with him, but the
third dissented, should not the ma
jority bow to his dissent as sufficiently
indicating doubt? We have similar
considerations with respect to State
court decisions. Why have any re-
view by the Supreme Court in such
cases, unless the courts under review,
whether Federal or State, should hold
legislation to be unconstitutional? {?
And then, on the view suggested, their
unanimous opinions to this effect
might be overthrown and the legisla-
ton still be sustained, If minority
of the Supreme Court considered 1t to
be valid, as a vote of the majority of
the Supreme Court would not be SUM-
cient to render contrary decision.
Divisions Held Inevitable.
"In truth, judges will have their
convictions, and it is of the essence
Of the appropriate exercise of judicial
power that these should be tndepend-
emily expressed. Divisions on close
questions cannot be prevented. The
unpopularity of decision against
the constitutionality of a legislative
act Is sometimes too readily assumed
by those who propose changes. It
has already been observed that our
history shows serious complaint in
certain important cases where acts
Of Congress have been sustained.
IF the object is to create public
content with the result, 1t would not
likely be obtained If statute highly
obnoxious to many. as interfering
with cherished liberty of action. were
made effective by a minority OF the
highest court. It must also be re-
Ynembered that we are considering the
exercise of the judicial power which
the Constitution places in one Su-
preme Court and the lower Federal
Courts. The Supreme Court has ap-
pellate jurisdiction with such excep-
tions and under such regulations as
are made by Congress.
But making allowances for such
exceptions and giving effect to such
regulations as Congress may appro-
priately provide with respect to the
cases in which the appellate juris-
diction should be exercised, when the
appellate jurisdiction attaches to q
case the judicial powers extends to
1t, and it is doubtful, to say the least,
If Congress would have the constitu-
tional authority to fetter the exercise
Of the judicial power by giving the
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