Evening star., 1937-03-30

some of the new
tenets of governmental philosophy an
nounced will not be able justly to
argue that the Supreme Court has
gone liberal" or radical.
For it is customary to find the So
called conservatives of the Supreme
Court arguing on behalf of equal
rights for women, equal bargaining
power, and an assertion that women
must not be Disseminated against, as
indeed, is row insisted by some of the
leading feminist organizations in the
land? 1t was Justice Sutherland,
speaking for Justices McReynolds,
Butler and Van Devanter, who in
sisted that to deprive women of their
right to contract for whatever wages
they wish to work for, while at the
same time refusing, doubtless because
Of constitutional barriers to apply the
same rule to men, calls for condemna-
ton Of the minimum wage law of the
State Of Washington as arbitrary.
Overruling Decisions Rare.
The overruling of previous deci-
sion of the Supreme Court is so rare
that the circumstances under which
the 5-to-4 ruling of IA years ago has
Just been reversed by another 5-to-4
ruling the other way will be promptly
seized upon by opponents of the pres
ent court as an example of individ-
dualiStic judgment, even though the
dicision does go the way the admin
istration wished it to go. But the
truth is the same decision that was
rendered this week upholding the
minimum wage law of the State of
Washington might easily have been
rendered with respect to the New
York State minimum wage law last
year had not the attorney general of
the State of New York insisted, along
with other counsel, on a strategy in
arguing the case which actually pre-
vented the Supreme Court from ruling
again on the Adkins case of 1923. The
majority opinion of year ago Specif-
ically said that the petitioner did not
ask for a reversal of the 1928 ruling
and instead contended that the New
York State law was different from
the law declared invalid in 1923.
United States no leeway, indeed. as
it is rule of the court that it must
accept the ruling of a State Supreme
Court as to what State law means,
and the highest court in New York
State had taken different view of
what the minimum wage law meant
than had the attorney general of
New York State tn his argument.
Now, however, with the State Of
Washington law there was no such
embarrassment. The Supreme Court
was free to overrule the 1923 decision
and it is significant that Chief Justice
Hughes concurs in the view Of Chief
Justice Taft, who dissented in the
1923 decision, which held invalid a
minimum wage law of the District Of
Columbia.
Hughes Stand Unchanged.
Mr. Hughes did not reverse his de-
cision of a year ago because then he
claimed that women were entitled to
special protection and that the State
of New York was well within its rights
In passing minimum wage law for
women. What the Chief Justice did
do, however, was to introduce a new
line of argument for the sustaining OF
a State law. He declared that the
question of a subsistence wage was
wholly separate from the question Of
compelling an employer to pay wage
he did not wish to pay or from pre-
venting an employer from hiring
anybody he pleased to work for him.
Mr.. Hughes pointed out that explaita-
ton of women's labor was a consider
alton for the State itself to prevent as
q matter of public interest and as
matter of protection to the State
treasury. He made this significant
comment:
THE community is not bound to
provide what is in effect a subsidy for
unconscionable employers
There is nothing in the majority
opinion which would foreclose the
possibility on the same line of reason
Ing of passage by States of valid laws
governing minimum wages for men.
The way has been opened to minimum
wage legislation by States and without
a constitutional amendment too, some
thing which this correspondent con-
tended year ago.
Within States Powers.
Senator Borah, it will be recalled,
was one of those who insisted that
minimum wage legislation could be
written that would conform to the
constitutional requirements. The clari-
flying opinion by the majority Of the
Supreme Court now makes it evident
that wage laws have been and still
are within the domain Of State power.
The various State laws that have been
on the statute books and have gone
unrepealed can be enforced here
after without fear of restraint by the
Federal courts.
Other decisions of the Supreme
Court handed down this week are Of
paramount Importance. Thus the
mortgage moratorium law known as
the Frasier-Lemke act shows that
when Congress puts its mind to study
ing previous decisions of the Supreme
Court constitutional legislation can
be written. Likewise the unanimous
opinion of the Supreme Court in the
railroad case will be studied with
much interest in framing future laws
relating to labor disputes.
This does not mean compulsory arbi-
tration or enforced settlement. Incl
dentally the Supreme Court was help
full in showing that the majority rule
in collective bargaining does not pre-
clude those in the minority from en-
tering into individual contracts for
employment even though the minority
cannot represent any persons besides
themselves in collective bargaining.
On the whole the courts decisions
are timely and constructively advisory
and they reveal the mental vigor Of
the justices every one Of whom wrote
opinions for delivery this week.
fCopyYtght 1872