Evening star., 1937-04-02

paired. But that's
what would happen II the Presidents
bill passes, because once the six extra
justices are appointed and the court
permanently becomes Is, no law to
reduce the size to 8 would be con-
stitutional, for the reason that the JUS
tices, when once appointed, must serve
for life and cannot be removed by act
Of Congress.
It is assumed that Mr.. Roosevelt
would appoint six young justices. There
are six of the present nine justices
who are above 10, but if they should
live on as did the late Justice Holmes
until their Goth birthdays, the court
would remain at Is. Chief Justice
Hughes has written Senator Wheeler
that the efficiency of the court would
be impaired with Is justices. Today
his comment constitutes supposition
based on experience. but II the plan
should actually go into effect and his
view u corroborated, there would be
no simple or practical way to get the
court back to nine members.
Amendment Might Be Fought.
1t might be argued that constitu-
tional amendment might be offered to
sanction the removal of justices al
ready on the bench, but such pro-
cedure would hardly win public ap-
proval as it would be so palpably per-
sonal and aimed at particular justices.
In the event justice died, the Presi-
dent might refrain from filling the
vacancy, but then the court would be
evenly divided while the country
waited for a second justice to pass on so
that an odd number might be attained.
The more the Presidents proposal
Is studied by members Of Congress,
the more sentiment grows for a SIM
pie amendment to the Constitution
compelling retirement at rs and pro-
viding for retirement Of two justices Of
the present court per year from those
already above the age limit suggested
30 that the court would not be dis
rupted by too many changes at one
time.
Incidentally, the letter OF Chief
Justice Hughes about the efficiency OF
, the court being impaired by making
IS justices decide each case made
profound impression. In some quarters
there was a disposition to inquire
whether Mr.. Hughes had not, In ef-
feet, rendered an advisory opinion
when he called attention to the fact
that the Constitution authorizes zone
Supreme Court" and not court con-
sisting of two or three divisions or
panels to hear different cases.
Actually, what Mr.. Hughes has said
does not constitute precedent, be-
cause the members of the judiciary
have always expressed freely to con-
gressional committees their opinions on
legislation specifically affecting the
judicial branch of the Government.
They have never offered advisory
opinions, even when requested, on
other types of legislation and there
is reason to believe that they feel 1t
would be unconstitutional to do so.
A study of various opinions already
handed down by the Supreme Court
indicates that the highest court feels
It can function only in specific con-
troversies or lawsuits growing out OF
laws already passed which appear to
the ntigants to involve a loss Of con-
stitutional rights.
Advisory Opinions IN Record.
The real advisory opinions rendered
BY the Supreme Court are those which
are already in the records and which
can be read again and again and sub
stantial advice obtained therefrom.
Senator SchWellenbach of Washing
ton feels that the Supreme Court
should render advisory opinions at
all times when Congress asks, but
Judging by the unanimous opinion
handed down by the court in the
N. r. A. case, even the advice con-
tanned therein was OF no avail when
1t came to consideration by Congress
of the Guffey coal bill. So it is difficult
to see what purpose would be served
by advisory opinions before legislation
is enacted when so little attention
Is paid by Congress to opinions rem
dered in lawsuits arising after the
bills become law.
The most practical plan is one sug-
eested by the late James M. Beck,
an eminent constitutional lawyer, who
thought there ought to be a Joint
committee of Congress to which both
the Senate and House might refer to
sset opinions on points of doubtful
constitutionality arising in proposed
legislation.
The court controversy is progress
ing to the point where 1t may be
said that constructive solution will
ultimately be found. The opposition
10 the Presidents bill is substantial
and, while on counting Of noses 1t
Is not enough to defeat the plan,
nevertheless it Is doubtful whether,
under the circumstances, Mr.. Roose-
velt would wish to keep the contro-
yersy alive until the 1888 campaign
and split his party when alternative
proposals are available on which a
majority In both Houses would agree.
Smith Made IMPRESSION
Thus 1t appears that q oonstitu-
honAl amendment to compel retire.
ment Of justices at rs, with provision
for staggering the retirements, would
probably include a clause definitely
fixing the size Of the court at nine.
Dean Smith Of Columbia University
Law School, who voted for Mr.. Roose-
velt In 1882 and 1896 and Is sympa-
thetic with the New Deal, made q
deep impression on the Judiciary Com
nlittee of the Senate when he con-
frmed the view expressed often hither-
to that the people alone, and not
Congress, should decide whether the
Supreme Court should be enlarged
or diminished In number. It will be
recalled that this correspondent q
fortnight ago referred to the fact
that more than three-fourths OF the
States of the Union do not grant their
resnectivA Legislatures the power to