Evening star., 1937-03-23
THE POLITICAL
MILL
BY G. GOULD LINCOLN,

al AIdilk ana revealing letter TO SEN
ator Wheeler, presented by Wheeler to
the Senate Judiciary Committee yester-
day, declared that proposal to have the
Supreme Court OF the United States act
on law suits in divisions would be un-
constitutional. In this declaration he
was backed up by Associate Justices
Brandeis and Van Devanter, who ap-
proved OF the letter before the Chief
Justice sent it to Wheeler. The sugges-
ton that, If the court is increased in
size to fifteen members, as provided in
President Roosevelt, judiciary BILL was
thrown of directly in the committee
hearings by Prof. Corwin of Princeton
University 1t has been suggested in
other quarters, too. with the idea that
under such a plan the court could do
more work than it does now when it
sits as complete court Of nine on every
case that comes before 1t for consider
alton.
1t is an unusual thing for members OF
the Supreme Court to pass upon the con-
stitutionality of proposed laws before the
legislation comes to them for opinion
through the medium of law suits. How
ever, in this case the proposed law deals
entirely with the Supreme Court itself.
The Chief Justice and his associates
maintain that the court must and should
sit as q whole, under the provisions OF
the Constitution, which says that the
judicial power shall be vested in "one
Supreme Court" and such inferior courts
as Congress may create. In the opinion
of the Chief Justice, "one Supreme
Court" means one Supreme Court. 1t
does not seem that any tortured con-
struction of the Constitution can mean
anything else, and that If there are to
be three or more Supreme Courts, pass
ing on various groups of cases. the Con-
stitution would have to be amended.
The Chief Justice would have cleared
the atmosphere still further, perhaps, If
he had given the opinion Of himself and
other justices on the often reiterated
recommendations from some members of
Congress that law Of Congress be en-
acted to make it impossible for the Su-
preme Court to hold law unconstitu-
tional unless at least tWo-thirds of the
court concur in the opinion. Senator
Norris Of Nebraska and other Senators
have insisted that this can be done con-
stitutionally. Other Senators, like
OMahoney Of Wyoming, contend that
it would take constitutional amendment
to make such law stick, and he has
offered such an amendment as a possible
compromise in the controversy which has
arisen over the Supreme Court and its
procedure
Senator Wheeler, in his testimony be-
fore the Senate committee, made two
comments that reveal the political situ-
alton and the power Of the Chief Execu-
tive In startling shape The first was
that few members Of Congress would
support the Presidents plan to pack the
court If it were not for their desire to
go along with the President In other
words, they were willing to abandon their
own views as to what was correct and
legal and moral in order not to break
with the Chief Executive His second
comment was that only the President can
get through Congress a constitutional
amendment dealing with the court. And
he added to this by saying that if the
President would approve an amendment,
all those Senators who have advanced
amendments Of their own would fall in
line without further delay and support
the Presidents proposal-provided, of
course, the President would also abandon
his plan to increase the size of the Su-
preme Court.
One of Senator Wheeler's ouestioners
at the committee hearing was Senator
Pittman Of Nevada. who has definite
ideas that the number of the Supreme
Court members be increased. When
Wheeler said that If the court was in
creased to fifteen now ito meet the
needs OF the time" and that later, If
Republican or more conservative Con-
gress and President came into power,
the court might be still further increased
so as to obtain opinions they desired,
Plttman announced that If the Presi-
dents bill becomes law and the court
is increased to fifteen he will offer an
amendment to the Constitution that no
further increase in the court be made.
He would freeze the number Of the court
at fifteen. Here was at least a naive
suggestion. If the needs of today are
cared for by an increase in the court,
then it is proposed to ignore the needs
of tomorrow.
Chief Justice Hughes in his letter
effectually laid the ghost of a crowded
court docket, raised by the President
and the Attorney General. He went
further, however, and made the admin
lstratlon charge that many litigants are
denied improperly appeals to the Su-
preme Court look rather ridiculous. It
had been inferred by the administration
leaders that the petitions for certiorari
by which cases are brought to the court
for review, were passed upon perhaps
by small sections of the court. This was
denied fatty by the Chief Justice, who
wrote that the entire court passes as
court upon each petition. He wrote also
that the court leaned over backward in
liberality in granting these petitions, and
that If four members Of the court
minority, urged that a petition be
granted, 1t was always granted, and that
even if the number approving was only
three or two at times, the petitions were
granted.
Chief Justice Hughes did not in his
letter say anything about the Presidents
demand for new blood" in the Supreme
Court, nor about the administrations
attack upon the economic theories of
the majority of the court members to-
day. Nevertheless, it seems clear from
his letter that the members of the Su-
preme Court are all against the Presi-
dents bill, which calls for an increase
of the court up to fifteen. The Chief
Justice pointed out that in the opinion
| of himself and his colleagues the pro-
| posed increase in membership would not
| improve the court, but would actually