Evening star., 1937-05-19

Of any judge who, '1 "''"''
having reached the age Of 70, gives
notice OF his intention to retire
But apart from the creation of a
court Of an even number of Justices
something that has happened only
rarely in American history-there is
another complication. 1t will be noted
on examining Justice Van Devanter's
letter that he did not use the word
resign He followed closely the
language of the Sumners-McCarran
law passed by this session of Congress
and signed by Mr.. Roosevelt on March
!. He wrote: Il desire to avail my
self of the rights, privileges. and ju-
dicial service specified in the act OF
March l, 1887, and to that end here
by retire from regular active service
on the bench"
Prevents Pay Cut by Congress
The purpose of the act was to allow
justice to retire and yet draw full
pay because when Justice Oliver Wen
dell Holmes resigned an economy wave
came along in Congress and cut his
remains in service as member of
the judicial branch of the Govern
ment. the theory is that he has con-
stitutional protection against having
his salary diminished. For the Con-
stitution does not permit any judges
salary to be reduced by Congress.
The Summers -McCarran law was
adopted in an effort to give justices
who retired some sort of opportunity
to continue in the status of judicial
officers without actually cutting them
selves of by a resignation. This is in
deed analogous to the status OF re-
tired Army officers who are subject to
call.
In a letter to the New York Times
last Sunday, Henry w. Taft. brother
Of the late Chief Justice Taft, dis
cSsed these very points. He said:
This raises question whether
there can be retirement which is not
q resignation. and whether the func-
tion of justice of the Supreme Court
In participating in the exercise by the
court Of its judicial power under the
Constitution can be altered or limited
by Congress, even with the assent OF
the justice.
Creates No Vacancy.
~The Office held by a justice can
not be held in part: if he remains a
Justice of the Supreme Court and ex-
ercises any part of the powers con-
ferred by his commission, there is no
vacancy, and there can be no sue
cessor,' as provided in the Summers
McCarran bill.
THE Summers bill also
provides that justice shall have the
right to retire from regular active
service on the bench What does
that mean? II he continues to be a
Justice OF the Supreme Court he has,
under the Constitution, the right to
demand that he be allowed to sit with
the court and perform his duties; and
his oath OF office, to support the Con-
stitution' as we'll as the statutory oath,
requires that he should do so.
Numerous other questions arise.
How. under the Constitution, can
there be any judicial service which is
not both regular and active as pro-
vtded in the act? How can a man be
justice Of the Supreme Court and
not be counted to determine a ma
1ority? That would seem to be i'm
plicit in the performance of the judi
cial function vested in one Supreme
Court
Quorum Question Arises.
Furthermore, the present law pro-
vides that the quorum of the court
shall consist of six of the nine JUS
tices. and the bill proposed by the
President also provides that quorum
shall consist Of at least two-thirds
of the number of which the Supreme
Court Of the United States consists
Is a retired justice to be counted in
determining whether the quorum
exists?
Finally. the Sumners-M NC Carran
bill makes the nature and character
Of the continued service of a retired
justice such as he may be willing to
undertake. Can the performance Of
the function Of justice appointed
under the Constitution and still
bound by his oath of Office be made
dependent upon his willingness to
undertake IT,"
I have quoted Mr.. Taft's letter at
length because it states the complex
tiles Of the problem raised by Mr.. Van
Devanter's withdrawal from regular
' active service" and challenges at once
the meaning OF the Sumners-McCar-
ran law.
Raises Eligibility Question.
In an entirely separate aspect, there
IS another complication. The Consti-
tuition forbids the appointment Of any
member Of the House or Senate to