Evening star., 1936-06-25
Member of the Associated Press.
Criticizing the Court.

The criticism of the United States
Supreme Court in which Senator Barkley
and Senator Robinson indulge them
selves at Philadelphia is not destined to
lessen the courts prestige, nor was it so
intended. The court has come in for
plenty of criticism in the past and will
doubtless receive its share in the future.
The distinctly unfavorable reaction to
its decision in the New York minimum
wage case follows the course of similar
waves of criticism of the past. The in
teresting point now is the use to which
this unpopular decision is being put at
Philadelphia. Senator Barkley and Sem
ator Robinson both emphasize the deci-
sion in the New York case in explana-
ton, as it were, of the difficulties en-
countered by the New Deal in the enact
ment of laws that would stand the test
OF constitutionality. Senator Barkley
went to some length in describing how
five men may interpret the Constitution
one way, and four men may interpret it
another way, asking what, under such
conditions, one may expect from 531
members of Congress?
But of the eight cases against the New
Deal only two of them were decided by
five-to-four decisions. Three of them
were unanimous, one was eight-to-one
and two of them six-to-three. The New
York minimum wage case did not involve
the New Deal. And if the New Deal Is
anxious to remedy the condition ap-
parently exposed by that decision the
procedure of submitting constitutional
amendment would certainly be more
logical than criticizing the court. The
danger of criticizing the court when
such criticism comes from those in high
places is that it may weaken respect for
the courts as an essential branch of our
Government. That danger is hardly
present now, for public sentiment in
support of the courts is stronger than
the criticism.
Senator Barkley's reference to the fact
that other Presidents have criticized the
court may be interesting historically, but
is Of no particular importance. Senator
Barkley recalled, in this connection,
President Theodore Roosevelts state
nent in 1910 in which, referring to two
decisions of the court, he suggested that
''there would be really a grave cause
for alarm" If these decisions indicated
the courts permanent attitude, for such
decisions, if consistently followed up,
would upset the whole system of popular
government"
The really interesting thing about
Theodore Roosevelt's 1910 speech before
the Colorado Legislature, and his sub
sequent proposals in connection with
the recall of decisions of the court, is
that they brought more criticism down
on the head of Mr.. Roosevelt than Mr..
Roosevelt had been able to bring down
on the head of the court. And in at
least one of the cases mentioned by Mr.
Roosevelt-the so-called New York
bakers case-that decision has been
rather consistently followed, and, over
thirty years later, the whole system OF
popular government is yet to be upset.
In his famous history of the Supreme
Court Charles Warren mentions Mr..
Roosevelts criticism in the bakers case
along with three otber cases which were
unpopularly received. But, he concludes,
when serious error can be claimed in
only four cases out of 564 involving the
police power of the States and out of
the multitude involving the power OF
Congress acting under the commerce
clause, it would seem that the evil COM
planned of was practically non-existent
Certainly no other branch of Govern
nent, and no other human institution,
ever functioned with a slighter per-
eentage of error"