Evening star., 1937-02-21
BY OWEN L. SCOTT.

out Widt IL AAlAiC odt Va AlhiC JuStlCCo
should decide that labor engaged in
manufacturing industries mining indus
tries, the construction industry and agri-
culture Is not engaged in an occupation
that directly affects interstate commerce,
and consequently is not subject to Fed
eral Government regulation? There is
nothing in recent court decisions to show
that the four so-called liberal" judges
feel differently on this issue than do the
conservatives. The divisions between the
justices have been on other, less vital,
points unanimous decision would
not on q question of judicial age or judi
cial viewpoint, but on the Constitution
itself
Some of the Presidents advisers admit
privately that it is within the power of
the court to throw Mr.. Roosevelt smack
up against the Constitution. and to upset
his attack on the court itself.
In that case, the fence-sitting Senators
could get q better line of the attitude of
their constituents and jump into the fray
on one side or the other Of q broad con-
stitutional issue.
But If the majority judges should refuse
to reverse their attitude on the power of
the individual States to regulate working
conditions within their borders, and If
the court should divide sharply on the
power of the Federal Government to
police labor conditions in industry, then
the President would have his hand
strengthened greatly. There Is every
indication that President Roosevelt looks
for just this sort OF development to give
him converts in the weeks ahead.
Actually, all signs point to the conclu-
sion that the court is moving right now
with the greatest caution.
Before the November election cases
were heard and decided in rapid sue
cession. The court showed little inclina-
ton to daily. Its majority knocked over
one after another of the Presidents laws.
Members. in writing their opinions. went
out of their way to say harsh things
about what the Government was doing.
There was evidence that the court major
tty rather enjoyed exercising the power
it possessed. The minority justices spoke
critically of this tendency.
Since the election, the court has not
made single important move, although
several opportunities have been offered
It, A decision has been delayed week
after week in the Washington minimum
wage case. A request for another argu-
ment over the New York unemployment
insurance case, decided by a 4-to-4 deci-
sion, has gone unanswered for weeks.
Even though the Government asked the
court to pass on the new social security
act, the justices refused. Likewise, they
sent back to the lower courts q case
involving the right of the Government
to lend money to be used by cities in
building power plants.
These and other signs have been noted
to suggest that the Chief Justice may
have suspected that the election result
portended a battle in which the court
would figure
What does history show concerning the
outcome of similar situations in the past?
Study discloSes that there has not been
in the past a situation comparable to the
present, in which a President and Con-
greSS were at odds with the court on so
many points. Apparently the justices
have not previously been called upon to
decide so many important public issues
within so short time.
The facts are these: Congress. during
its history, has enacted just about $4,000
laws. The Supreme Court, according to
a survey made for the Library of Con-
gress, has held unconstitutional only 73
Of those laws. or parts Of those laws.
But that is not all. OF those 73 uncon-
stitutional acts, the bulk concerned points
of narrow interest. Really only 16 deci-
sions of the Supreme Court in all of its
148 years of history have been important
from the point of view of the average
citizen. OF those Is decisions, were
rendered in the years between 1903 and
1885. The other eight have been handed
down in the last two years.
This whole issue Of Federal power has
headed up under President Roosevelt.
There is no really comparable situation
in all of the Nations history.
The first court decision holding an act
Of Congress unconstitutional came in
1903. The next was not handed down
until 1857, when six Supreme Court
judges ruled that Congress could not bar
slavery from the Territories on the
ground that slave was property and
subject to the rules governing property.
A bloody Civil War settled that issue.
During and in the years Immediately
following the Civil War, Congress and
the President engaged in q variety of
moves to keep the court power in check
1t was 1895 before the court came into
its own again, ruling out an income tax
law as unconstitutional by a 5-to-4 deci-
sion. This matter was Strengthened out
by an amendment to the Constitution.
Justices next barred laws designed to
check child labor, to protect working
men against accidents and to establish
minimum wages for women. Those deci.
sions were widely scattered.
But all was changed after January.
1 1885.
The court decided that Congress had
dalegated too much Of ~ power 70 the