Evening star., 1937-03-24

OF acts OF Con-
gress IN which the size of the Supreme
Court was increased on some occa-
Gons and diminished in others.
But 1t Is pointed out here that
nowhere in history is there an exact
parallel to what President Roosevelt
has recommended-at least nowhere
has Congress actually adopted any
such legislation, though it has once
before considered the plan and re-
jected it.
The chief difference between Mr..
Roosevelt's proposal and past statutes
adopted by Congress lies in the fact
that IN each instance heretofore
Congress has actually fixed the num-
Der OF justices definitely. Whether
the number is five or seven or nine,
the number is stated positively and
has not been changed except by
formally passed statute which again
has fixed the number
Vague Under Bill
Mr.. Roosevelts bill does not plan
to fix the number of justices definitely
at is. In his radio speech, he conceded
that II his bill passes the court might
remain at nine or 60 up to IL or is,
depending on the will of the justices
OF the Supreme Court of retiring
age. Congress, in other words, would
pass general statute allowing the
size OF the court not to be fixed
At any definite number but to fluc-
tuate, and the fluctuation would de-
pend upon circumstance over which
Congress has no power to legislate
at all, namely, the life term of justices.
The argument Is made, therefore
that If the Supreme Court is to be
changed in number depending on re-
tirement OF justices, the power to f1x
the size Of the court will have been
delegated by Congress to others. 1t
will have been delegated either to the
President or to the retiring justices of
the Supreme Court or both, but it
will have passed out OF the hands Of
Congress until such time As Congress
wishes 10 recover the power 1t has
delegated
The importance Of definite number
Court cannot be underestimated, for
h touches . vital constitutional
problem. As Chief Justice Hughes
pointed out In his letter to Senator
wheeler. the Constitution vests the
judicial power IN America in one
Supreme Court But what is zone
Supreme Court"f Can 1t be of one
size today and Of another size tomor-
row. And what Is the quorum Of the
court to be? Likewise under the terms
OF the Sumner bill just passed and
signed by the President the retiring
justices Of the Supreme Court can be
called to active duty. Gould this con-
ceivably bring about . situation in
which a Chief Justice could recall to
judicial activity men who have retired
and upon whose retirement vacancies
we're supposed to be created?
Opens Way to Challenge.
Congress In its laws has heretofore
defined what is meant by q Supreme
Court. Congress has since 1889 said
that the Supreme Court shall consist
OF = definite number OF justices
President RooSevelt's proposal, If
adopted by Congress, would not define
a Supreme Court in terms sufficiently
explicit to be above challenge. A
Supreme Court can no more exercise
judicial power validly when its size
is indeterminate than \ Legislature
can pass acts by majority vote when
the size Of the majority or of the total
number in the Legislature can be
changed overnight by some circum-
stance delegated to Governor where
BY he may tncrsese or diminish the
number Of legislators during session.
The new proposal sponsored by the
President could change the size of the
Supreme Court during session Of the
court itself. For as some Justice
reached the age Of 10 and did not
retire the President Is commanded by
the terms Of the legislation to nomi-
nate an additional justice.
Members Of the Supreme Court were
10 be assured life tenure. Judicial
power to act was vested in q Supreme
Court by the express words OF the
Constitution, 10 II President at any
time during the middle OF term of
the Supreme Court may add q justice
Or withhold a nomination for 4 few
days or 4 few weeks he can in effect
control the size Of the court and thus