Evening star., 1937-07-27

packing Dill De
deferred until a new bill could be
worked out, the Senators opposed to
the court packing idea pointed out
that they were taking no chances with
any new bills at this stage of the ses-
sion and that they preferred to select
bill that had already passed the
House This measure, known as the
Summers bill, has now been amended
by the Senate Judiciary Committee to
include the half dozen points agreed
upon last week. When 1t passes the
Senate, the Conference Committee
will naturally be limited by parlia-
mentary rules to the sections already
In this measure and hence new sub
tects cannot be inserted.
The Supreme Court reorganization
proposal is dead for this session. Even
the idea of requiring a two-thirds vote
of the Supreme Court to declare acts
Of Congress invalid would not get any
where in the Senate at this time were
1t to pass the House.
The truth is the passage of law to
interfere with the Judicial power by
telling the Supreme Court it cannot
hold acts Of Congress invalid, except
by a siX-to-three vote. is generally
regarded by Well-informed lawyers to
De beyond the constitutional power of
Congress. The Constitution vests the
judicial power in the Supreme Court
and the essence of judicial power is
the right of the court to say what is
the final judgment and to reach it by
rules Of its own. Likewise historically
a ma ajority ruling is 81 per cent rather
than 6623 per cent unless particularly
specified.
Might Apply to Congress.
There may be some virtue in chang
Ing the definition of the WORD major
ity' hereafter to mean 662} per cent
instead of 81 per cent, but if it
achieves popular favor the argument
may be made with equal force with
reference to acts of Congress. Why
should a flve-to-f0ur decision be pos
sible when enacting law in the first
place? Thus last week in the leader
ship fight the majority party chose
Senator Barkley by vote Of 38 to 81,
which means that one man cast the
deciding vote in selecting a leader for
the majority party. The vote in per-
centaees was 50.6T for Barkley and
1888 for Harrison, whereas a Supreme
Court five-to-four vote is really Sc per
cent versus "A per cent of the men,
bership Of the court.
Congress is quite accustomed to
1ne-man decisions and the Constitu-
ton especially provides toy Sucn con-
IngencieS in the Senate, where the
Vice President may cast the deciding
vote in case OF a tie
1t would take constitutional
amendment in all probability to put
q tWo-thirds rule in effect in the
Supreme Court just as it would take
an amendment to the Constitution to
require legislation to be passed by a
tWo-thirds vote hereafter instead of
simple majority.
Reasonable Doubt" Theory.
Sentiment for constitutional
amendment to support the six-to-three
Idea in Supreme Court opinions has
been gaining ground in Congress on
The theory that reasonable doubt"
Exists in a five to-four decision but
that a siX-to-three vote is more con-
elusive. What is often overlooked, of
course, is that five justices make the
decision of the Supreme Court and not
Dne.
There might be as much reason then
IN the future, too, for pointing out
that the justice who added his vote
to make a minority of three into
minority of four wields as much power
In the court as the justice who now
adds his vote to that of four others in
order to make the ajority Of five.
It will always be a one-man decision
In that sense no matter what the
majority definition happens to be.
If Congress is really intent on abol-
Eshlng the one-man decision idea, 1t
will examine the vast discretionary
powers 1t has vested in one man in the
executive branch of the Government.
From 1889 to 1888, the most money
that all Presidents of the United
States had to spend in ways in which
they could exercise their own discre-
ton amounted to total over all the