Evening star., 1937-05-05
A Flexible Court.

What will constitute the Supreme
Court of the United States If President
Roosevelt's bill authorizing him to ap-
point maximum of six additional
justices OF the court is enacted into law?
This question was propounded by Sena-
tor Borah of Idaho during the hearings
on the Presidents court bill before the
Judiciary Committee. Thus far it has
not been definitely answered For under
this proposed measure the Supreme
Court might consist of Chief Justice
and eight associate justices, as at pres
ent, or 1t might consist of a Chief
Justice and nine or more associate ius-
tees, up to fourteen. The number
would be determined by the personal will
OF individual members of the court who
reach or have reached the age of seventy
and one-half years. If all of the justices
who have reached that age Immediately
retire, the court membership would re-
main at nine. II all OF these justices
decline to retire, then the membership
would be fifteen. Congress, which under
the Constitution has the right to say
how many justices shall constitute the
Supreme Court, will have turned over to
the individual justices themselves the
power to Ak the membership of the
court.
Representative Pettengill of Indiana
has brought the issue squarely before
Congress and the country. In an ad-
dress in the House on Monday he chal-
lenged the constitutionality of this slid
ing scale for Supreme Court member
ship. He argued that it was unconstitu-
tional for Congress to delegate these
powers to the individual justices, to leave
the right to fix the membership of the
court to the desires of one or more
members of the court. 1t is an interest,"
ing constitutional question. And Mr..
Pettengill carried his argument to a
logical conclusion when he said that in
the event the Presidents plan, or any
other sliding scale for the court mem
bership, Is adopted, decision by such
court could and would be challenged
on the ground that the court was not
properly constituted.
The proponents of the Presidents pro-
gram, including the Attorney General
and others, have declared that the Presi-
dents bill was entirely constitutional:
that the Congress has always had the
power to fix the number of justices who
shall serve on the Supreme bench. They
have pointed to the fact that Congress
has six or seven times exercised this
power, changing the number of Justices
In each of these changes, however, Con-
gress has definitely stated what number
shall constitute the Supreme Court. It
has said that there shall be a Chief
Justice and fixed number OF associate
Justices. That is vastly different propo-
sltion, however, from what is now pro-
posed by President Roosevelt and his
supporters.
1t is the contention of MIR. Pettengiu
eAA1t G1iC OClC6dClOll O1 SUCH power is
clearly unconstitutional. He has found
decisions by the Supreme Court itself
to uphold this contention. Further, he
points to the chaotic condition which
might arise if citizen appealed to a
court consisting of nine justices, had
hearing before a court consisting of
eleven justices and a final decision by
a court of fifteen. He points also to a
possible case where litigant might win
his case before court of nine justices
and lose on rehearing before a court
of twelve.
Senators who are supporting the
Presidents Supreme Court program are
inclined to laugh off, If they can, the
suggestion of nconstitutionality made
by the Indiana Representative. It is
a question that may arise to plague the
country in the future if the bill is en-
acted into law. 1t should receive the
most careful consideration.