Evening star., 1937-10-12
The Black Case.

The Supreme Court Of the United
States, without passing upon the legality
of the appointment of their associate,
Mr.. Justice Black, has denied two petit
tions in which it was urged that the
appointment was invalid under the
terms of the Constitution. This course
was expected. 1t is in line with the
practice of the Supreme Court, which
has held in the past that unless petit
toner has real and personal interest,
the court will not give hearing.
The declination of the Supreme Court
to hear arguments in the. charges
brought against the appointment of
Justice Black, however, leaves the ques-
ton of legality still undetermined. One
avenue, apparently, has been closed.
Whether some other petitioner-for
example, one with case actually and
practically before the court for review
would be allowed to challenge the
validity of the Black appointment only
the court could say. Such petitioner
might declare that Justice Black was
not qualified to sit in judgment on his
case, because his appointment was
faulty, and ask the court to determine
the matter.
The charge that Justice Black was
ineligible for appointment to the
Supreme Court has been based on two
counts: First, that he voted for tie
Summers retirement act in the past ses-
sion of Congress, of which he was
member, and that act increased the
emoluments of the members of the
Supreme Court; second, because he,
voted for the retirement act, which, it
is held by widely known constitutional
lawyers, including Senator Borah of
Idaho actually created an additional
member of the court. Under the terms
of the Constitution no member of Con-
gress may, during the term for which
he was elected, be appointed to any
office of which the emoluments have
been increased or to any office which
he voted to create. These are not flimsy
charges against the Black appointment.
It is very doubtful, however, that they
will be finally tested.
Had the Supreme Court taken the
charges against the Black appointment
under Amusement, heard the arguments
and held Justice Black ineligible, it
would have pulled the chestnuts out of
the fire for the President, who appointed
him, and the Senate which confirmed
him. Both the Chief Executive and the
Senate have been concerned and en-
barrassed over the revelation that JUS
tice Black was at one time member
of the Ku Klux Klan. While such
decision on the part of the court might
have brought secret sigh of relief in
those quarters, it might also have evoked
a new assault upon the court from the
New Deal administration.
The petitions denied yesterday by the
Supreme Court in the case of the Black
appointment made no mention of JUS
tice Blacks former Klan aff1liation. To
many persons, however, that is matter
which should disqualify Justice Black
from service on the highest court even
though the objection does not rest on
legal grounds. There have been de-
mands from many quarters that Justice
Black resign from the bench. since he
admitted his former membership in the
Klan. No one now expects Justice Black
to resign.
The Senate, when it had the appoint
ment of Justice Black before it for con-
sideration, had it's attention called to
the charges of illegality under the Con-
stitution. Justice Black was a member
of the Senate. There was an inclination
on the part of some of his colleagues
to overlook in his favor any close legal
point; senatorial courtesy" operated to
close the doors to argument against his
appointment to the bench and $4,000
job for life. The Senate would not
even linger to listen to the charges, then
made, that Justice Black had been a
member of the Ku Klux Klan. Indeed,
| it appears now that Justice Black has
rather charmed life-in so far as his