Evening star., 1937-03-23
EX-JUSTICE SEES
COURT PLAN VALID
Seven Previous Changes in
Size of Tribunal Cited by
J. H. Clarke.
By the Associated Press.


SAN DIEGO, Calf, March 23.-
John Hessin Clarke, only living retired
Supreme Court justice, told the Ma
ton last night that President Roose-
velt's Judiciary reform proposal Is
plainly within the powers granted to
the Congress and therefore clearly
constitutional"
Clarke, who became associate justice
In 1916, resigned from the Supreme
Court in 1922 to devote his time to
cultivating public opinion favorable to
world peace
Addressing Nation wide radio IN.
B. c. audience, he said he yielded
to no one in his confidence in and
estimate of the great value of the
our Government, and I shall not crtti-
cize in any manner either any of its
recent decisions or the proposals of
the President.
Would conditional increase of the
number of judges of the Supreme
Court by act of Congress, as recon-
mended by the President, be constitu-
tpnal or not?" Clarke asked. Il shall
confine myself to that naked legal
question.
mo rule of law is better established
than that great weight must always
be given by the courts to early-con-
temporaneous-cons OF the
Constitution by the legislative or ex-
ecutive departments of the Govern
ment, especially when such construc-
ton has been repeated, acted upon
and long accepted by the country.
Six Judges Appointed.
LET us apply this rule to the history
OF the action of Congress and of many
residents with respect to our subject
THE Government under the Con-
stitution was organized in April, 1889,
and five months later, in September,
by act of Congress, approved by
President Washington, provision was
made for the organization Of the Su-
preme Court and the number OF
Judges was fixed at six.
This action of Congress in deter
mining the number of judges of the
Supreme Court was accepted by the
country as obviously constitutional,
the Judges were appointed by Presi-
dent Washington and proceeded to
act, under it.
The number of judges remained at
six for II years, until in 1901 when
Congress reduced the number to five
by an act approved by John Adams,
our second President. The number OF
five Judges continued for only one
wear, when, by act Of Congress, ap-
proved by President Jefferson, our
third President, the number of judges
was restored to the original six.
With this number of six Judges the
court continued for five years, when
again by act of Congress, also approved
by jefferson, the number was increased
to seven.
With this number of seven judges
the court continued in the discharge
of its high duties for 80 years, when
the growth of the country and of the
business of the court led Congress to
add two more associate justices, in an
act approved by President Andrew
Jackson, thus with the Chief Justice
making the number nine. With this
number the court continued for 26
years, until 1853 when the number was
increased from 9 to 10 by act of Con-
gress approved by President Lincoln.
Number Again Changed.
This fifth change to 10 continued
Tor only three years, when, in 1866,
shortly after the death of President
Lincoln again by act of Congress it
was provided: That no vacancy in the
Office of associate justice of the Su-
preme Court shall be filled by appoint
ment until the number of associate
justices shall b. reduced to SIX max
ing seven with the Chief Justice.
This potential reduction of the
total number of judges from 10 to 7
also lasted only three years, when,
Gen. Grant, being elected President,
by act of Congress, approved by him,
in 1869, the number of associate JUS
tices was restored to 9, at which
number it has continued to our day.
Thus in 80 years of our history
Court was first determined by act OF
Congress; twice the number has been
reduced and five times it has been
increased, always by act of Congress,
and never before has the power OF
Congress under the Constitution to
thus legislate been questioned, GER
tainly not in the courts.
1T is confidently believed that
few, if any, other important powers OF
Congress have been so early and SO
often exercised with the entire ap-
proval of our country, our Presidents
and our courts as this OF determining
the number of judges Of the Supreme
Court.
Constitution Cited.
"This history alone, were there no
other reason, would warrant the
courts, indeed would compel any court
to approve as constitutional such
exercise of power by Congress as the
President proposed.
Consider nov for moment the
specific provisions of the Constitu-
ton on which this long line of con-
gressional and executive action, which
we have recalled, has been based.
1 ley dlc Ollly WV, nAAN Why oAS
very short.
"First-T'he Constitution declares:
The judicial power Of the United
States shall be vested in one Supreme
Court, and in such inferior courts as
the Congress may from time to time
ordain and establish and
"Second-After providing a very
limited original jurisdiction for the
Supreme Court, the Constitution de-
clares: In all other cases before men,
toned the Supreme Court shall have
appellate Jurisdiction = with such
exceptions and under such regulations
as the Congress shall make :. And
that is all.
while the Constitution thus de-
clared we shall have Supreme Court
no provision whatever was made for
its organization, and it was at once
apparent that the only department OF