The Republican. [volume] (Oakland, Md.) 1877-current, 1937-01-14
THE GREAT
GAME OF
POLITICS.
Copyright by the Baltimore Sun and
reprinted in The Republican by
special permission.
If The Court Could Talk
By FRANK R. KENT.

III Inc Court Could Talk
The lecture of the President to the
Supreme Court on the necessity of be-
ing more liberal was the real feature
OF his message Wednesday and his
usual journalistic interpreters rushed
to say how right he is, how very right
-indeed-and moderate, too.
49,
1t is an easy thing to criticize the
Supreme Court, and in the past three
years an extraordinary number of
people, some big and some little,
have INDUCED themselves therein with
great freedom, frequency, fippancy
and f1uency. One reason it is easy is be-
cause the Court cannot talk back. Ira
dition imposes silence upon it. It can
speak only through its formal opinions,
in legal phraseology and on Constitu-
tional subjects. The austere eminence
of its position compels it to ignore
every form Of Misrepresentation.
| &Sa
Its members make no public
speeches. They are not equipped, as is
every other department of government
down to the smallest and newest
bureau, with press agent through
whom it can issue statements, spread
pro-court propaganda, explain its po-
sition so that the people may under
stand, refute calumny or reply to its
detractors. It has to maintain its dig
nifty. It has to take it. For nearly two
years it has been the target Of the
New Deal sharpshooters, and the only
reason it was not made a campaign
issue was because of the idea that,
after all, it is the greatest institution
we have, inspires instructive reverence
among the people, and they might re-
act unfavorably.
None the less, between the day in
1885 of that oddly bitter "horse and
buggy" remark to the lecture on lib
eralism on last Wednesday, real cam
paign against the Court has been
waged. 1t has been peppered with
propaganda from many quarters. What
effect it had there is, Of course, no
way to know, but that the Presi-
Dental lecture on liberalism, coupled
as it was with his comments upon the
late MIRA and his ideas Of reviving its
principles, was intended to influence
the court is clear. He, as the Execu-
tive, expressed satisfaction with the
cooperation" (subservience would
have been a more accurate word) of
the legislative branch, dissatisfaction
with the lack of liberality of the ju-
dicial branch, urged it to reform, cited
the "outlawing of the MIRA" as thing
to be deplored.
And this the Court had to take. 1t
can say none of the quite obvious
things in reply to the journalistic
chorus of chow right he is, how right
he is" For example, it cannot recall
that the NRA decision was a unani
nous decision. 1t cannot point out that
Justices Brandies, Cardozo and Stone
Joined in that decision, nor ask if it is
intended to criticize their liberalism
1t cannot say that it would be better
if, instead of asking the Court to be
"more LIBERAL" the President would
take more care in the drafting Of Ad-
ministration measures so as to avoid
conflict with the Constitution; that it
isn't a question of liberalism, but of
legality; that when the MIRA was first
proposed there was not a tirst-class
lawyer in the country who believed it
would be upheld by the Court; that
when the AAA was before the Senate,
one Senator arose and asserted that
there was not a single lawyer in the
body who would arise and risk his
reputation by expressing the convic-
ton that the bill was constitutional.
None arose.
They could say that perhaps "co-
operation" with the judicial branch
might be promoted and liberal con-
struction encouraged if the President
would refrain from sending public
messages to Congressman asking them
to pass bills regardless of any doubts
you may have of its constitutionality."
They might also urge the President to
employ good lawyers concerned with
seeing that Administration measures
were framed within the Constitution,
instead of poor lawyers anxious only
to evade it. There are other things the
Court might say if it were talking
Court. But it can say none of them.
With important New Deal decisions
(the Wagner Labor Board Act is one)
pending before it, it is put in position
by the most popular man in the coun-
try of being reactionary or illiberal
if it decides against him. If it adopts
the attitude of Congress and eco
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