Evening star., 1937-03-10
Digest Of Court Plea by Cummings


court Plea by
L REITERATEs CHARGE TRIBUNA
time in attacking the problem. The
Congress responded in 1928 with 4
measure giving the Supreme Court dis
cretion, In mcst cases, to determine
whether 1t would hear particular
causes.
Court Inverts Practice.
BY limiting the number OF cases
heard the court has been able to keep
abreast Of its self determined docket.
BY thus inverting, as 1t were, the
usual situation, the court hears and
decides not what Is presented, but
only what it can handle.
That the consideration of appnca-
tions for certiorari places a heavy bur-
den upon the Supreme Court Is evil
denced by the words of the Chief JUS
tice himself, In an address delivered
before the American Law Institute
in May, 1884. After explaining the
operation of the system he continued,
IS follows:
Thus all the justices pass upon all
the applications for certiorari During
vacation the papers on these applica-
tions follow us wherever We are, at
home or abroad. Having approx
mately 300 Of them to deal With during
the Summer, you can see that during
the period when the court is not in
session there is large amount OF
judicial work to be done"
The question is not whether the
court Is up with the docket, but by
what means it keeps up with the
docket, and whether the burden that
1t must sustain is too great to warrant
the careful consideration to which
these petitions are entitled and
whether assistance, by the appoint
ment Of additional judges, is indi-
| Gated.
Let us look at the actual operation
OF this system during the 1885 term.
The judges during that year were
called upon to decide appeals and
original proceedings in which the
briefs totaled 1882 pages and the
records 35,833 pages, or 51,695 pages
in all. In addition, there were 1863
petitions for writs Of certiorari. These
involved 53,86S pages Of briefs and
290,364 pages Of record, 4 total OF
344,232 pages.
| + X
Wrote ITO Opinions Also.
But in addition, the justices wrote
ITO opinions-majority, dissenting and
concurring. Moreover, the official re-
ports. comprising three large volumes
disclose l59 additional short men,
oranda and per curiam opinions
However we may look at it, it is q
stupendous task. If there were more
justices the court might properly
divide into groups for the consideration
Of applications for the review Of cases.
The number Of applications. with ac-
companying briefs and records, which
each judge would be expected to ex-
anime might thus be reduced by half
or two-thirds.
Indeed, it might be desirable If only
a quorum Of two-thirds OF the court
sat to hear cases not involving i'm
portant constitutional questions, leav-
ing the others free to write opinions
or to examine applications for review.
A similar system prevails in some of
the States and was suggested for the
supreme Court by the Committee on
jurisprudence and Law Reform of the
American Bar Association in 1921.
! - +*
NEW BLOOD FOR THE JUDI
C1ARY-"Life tenure of judges" as
the President stated in his recent mes
sage, was designed to place the
| courts beyond temptations or in
fiuences which might impair thier
| judgments; 1t was not intended to
create static judiciary"
There IS the notion that the law
is as fixed and as absolute as the
multiplication table
Constitution Meant to Endure.
On the contrary the Constitution
was not intended to be a code of law
out was meant to be general frame
work within which each generation
might work out its problems in orderly
fashion. in the words of the great
Chief Justice Marshall, the Constitu.
| tiOn WAS "intepSad fo opd,,~o fo.
to come, and consequently, to be
adapted to the various crises of hu.
man affairs" Justice Story likewise
pointed out long ago that the Con.
stltutlon inevitably deals in genera
language. Hence its powers are
expressed in general terms leaving te
! the legislature, from time to time
to adopt its own means to effectuate
legitimate objects, and to mold anc
model the exercise of its power, as its
own wisdom and the public interests
should require"
James M. Beck put it another way
when he said, The Supreme Court
is not only a court of justice, but ir
a qualified sense continuous con.
stitutional convention. ="
Many people have been msled into
believing that the Constitution is al
fault, We are facing not a constitu.
t1onal, but judicial crisis.
Nowhere does the Constitution STATE
that the Supreme Court shall have
power to declare acts of Congress.
void. 1t was not until 1903. ir
the case Of Marbury VS.. Madison
that the Supreme Court held that il
possessed such power
The power was not exercised AGAR
for more than half a century. Ther
Justice Taney wrote the opinion TO,
a divided court in the Dred Scot
case. The crisis thus precipitatec
the country is not likely to forget.
Grant Packed Court.
Not long afterward, and despite thi,
disastrous experience, the court in the
famous ease Of Hepburn VS.. Griswolc
held invalid the legal tender act by 8
vote OF four to three. Had that deci.
sion been permitted to stand it woulc