Evening star., 1937-02-13

promptly heard and disposed of with
out unreasonable delay. The denial
Of Jurisdiction in many cases be-
tween private litigants seeking to
reach the Supreme Court by the
extraordinary writ Of certiorari has
been In pursuance OF policy deliber-
ately adopted by Congress and ap-
proved by nearly all Of the leading
lawyers of the United States, in
cluding the present eminent chief law
officers OF the United States in their
annual reports. The basis of this
policy. Of course, is that the highest
tribunal should not be occupied with
the reafirmance in private disputes
Of principles already well established
in the law, but that the court should
be left free to devote its energies
in the determination of constitutional
questions, and in its duties of CO.
ordinating the activities and decisions
Of the inferior courts along the lines
of the Presidents message.
In passing it must be said that any
delay which has occurred with respect
to the determination of the validity of
the legislation of the last four years
has not been due either to delay upon
the part of the courts or the adverse
parties. but by reason of the procedure
of the Government itself.
Objects to Violence Of Change
My objection is not so much to the
increase Of the size Of the Supreme
Court. although I deem so large an in
crease inadvisable. 1t goes to the sud-
denness and violence of the process OF
change. It is because it amounts es-
sentiaHy to abolishing the Supreme
Court Of the United States as it has
existed since the foundation Of the
republic and the setting up of new
tribunal in its stead with reference to
particular situation and with refer
ence to particular litigation which has
recently been or may in the near future
be pending before the court.
II would be the last to believe that
the Supreme Court is sacrosanct OF
above criticism I have read the criti-
cisms Of Jefferson and Jackson upon
both the personnel and the decision
Of the court. I have read the bitter
attacks of Lincoln upon the Dred Scott
decision and other policies of the court
My first memories are Of an era when
the court was generally criticized by
nberals-and by none more than by my
father-for its action by a 5-to-4 de-
cision declaring the income tax pro-
visions of the Wilson bill unconstitu-
tional. which happened by reason OF
one justice changing his mind over
night. But these matters have been
corrected either by the march of time
or by definite constitutional amend
ments.
If the proposal to increase the court
were one Of permanent public policy
to be decided upon its merits and to
be put into effect gradually or at some
date certain in the future. would
have an entirely open mind upon the
subject with the inclination to agree.
But the conclusion is unacceptable
that to increase the court at one time
by the increase of an additional two
thirds of its present membership
is to pack the court with reference to
a particular situation and particular
litigation now pending or to be i'm
mediately pending before it.
Sets Dangerous Precedent.
at is not only changing the rules
while the game is in progress. It is
setting q precedent for the changing
Of our system of coordinate powers
between the three branches of Gov
ernment.
BE it not forgotten that a precedent
set by good President Of high ideals
for good public purposes may be taken
advantage Of In some future time by a
bad President or a mistaken President
or one with ulteIior motives. We can
not assume that so high minded and
idealistic executive as Franklin D.
Roosevelt will always occupy the
White House. If the court can now
be increased to nearly double its pres
ent membership with respect to par
ticular litigation, some future reac-
tionary President, with a subservient
Congress, could increase it to 81 or to
IS or to 155.
Therefore, it seems to me. that the
Presidents proposals as to the inferior
courts and as to assistance to the
Supreme Court in its supervisory
jurisdiction, should be unhesitatingly
adopted. It also seems that there
should be no valid objection whatever
to the authorization Of Supreme Court
justices to retire at age Of 10 upon
full pay for life. But as to authority
to at one time increase the Supreme
Court by the addition Of six members
with regard to particular litigation.
I find myself in complete and total
disagreement. To me it seems a rad
ical and unnecessary change in our
whole system of Government, without
the submission to the people in the
proper form Of an amendment to the
Constitution. Therefore shall vote
against that portion Of the Presidents
pgonpsak." -. ---->-. =.