Evening star., 1937-03-10

dent. has disregarded the powerful
arguments Of other justices OF the
court and has run counter to the
sentiment Of the country.
4 X 4
Yet judicial history continues to re-
peat itself. In February, 1895, finan-
cial chaos was avoided by the margin
OF only one vote In flve-to-four de-
cision. 1t Is dit1cult, indeed impos-
sible, to reconcile the five-to-four de-
cis'on in the private contract gold
clause cases, or in any other cases in
volving constitutional questions with
the settled and we'll known rule Of
law that legislative enactments should
be recognized and enforced by the
courts, unless plainly and palpably
In violation Of the Constitution.
Doctrine Often Enunciated.
The Supreme Court has frequently
enunciated that doctrine. In the case
Of Williams vs.. Mayor the court said,
within the field where men Of rea-
son may reasonably differ, the legisla-
ture must have its way" In the legal
tender cases the court said:
A decent respect for q coordinate
branch Of the Government demands
that the judiciary should presume,
until the contrary Is clearly shown,
that there has been no transgression Of
power by Congress. = An act Of the
Legislature is not to be declared void,
unless the violation Of the Constitu-
ton is SC manifest as to leave no room
for reasonable doubt.
Let us consider the minimum wage
cases. The Supreme Court invalidat-
ed such statutes in 1886 and 1923, and
divided evenly on the issue in 1917
| AS a result neither the Federal Gov
eminent nor the States may deal with
the problem Of sweatshops. Yet over
that period an actual majority Of the
| judges Of the Supreme Court declared
such legislation constitutional. This
curious result is due to the fact that
the controlling and conservative group
| has remained on the bench longer
than the liberals, who have come and
gone. The number of the latter is
greater in the aggregate, for over this
period there were 10 Of them, whereas
there were only who believed such
laws invalid.
The Presidents plan deals with the
impossible situation growing out of
the reckless use of injunctions. 1t
deals with the presence on the Federal
bench of aged or infirm judges. 1t
deals with the crowded condition OF
the Federal dockets, the delays in the
lower courts and the heavy burden
imposed upon the Supreme Court. 1t
supplies an effective and systematic
means for the infusion Of new blood
into the judiciary so that We may
have an up-to-date administration of
the law and forward-looking decisions
| upon social and economic questions
1t is direct, coherent and well consid-
! cred. The more it is studied the more
freely and fairly it is debated, the
more clearly will its merits appear.
Judicial System Sound.
| The Federal judicial system is sound
at heart and will stand every kind of
| inquiry and discussion, but those who
/ mistakenly seek to preserve It's faults
and strive to perpetuate them, are
! playing with fire--dangerously. Let
us not forget that the law is the serv-
/ ant. not the master of human need.
/ The proposed increase in the number
of judges is not for the purpose Of en-
slaving the judiciary; not for the pur-
pose Of making it an adjunct Of the
executive. The purpose is to rejuven-
ate the judiciary machinery, to speed
I justice and to give to the courts men
of fresh outlook who will refrain from
/ infringing upon the powers of the
Congress.
There are some who, admitting the
/ reason, necessity and logic of the
Presidents proposal, are nevertheless
beset by sort Of nameless fear that
it will constitute dangerous prece-
dent.
In the course of our history the size
of the Supreme Court has been changed
six times by both increasing and re-
ducing its membership. The power tc
make these changes is confided by the
Constitution to the President and the
Congress. The exercise of q consti-
tutlonal power for wholesome pur-
pose furnishes sound, not a danger
GUS, precedent. The fact that We may
abstain from using power admittedly
ours is by no means a guarantee tina,
that same power will not be used BY
others hereafter
K *
After all, the appointment of Judges
is not an unlimited power. Once ap-
pointed they are not subject to either
the Congress or the Executive More
over, in their appointment the Senate
must concur To say that the power
OF appointment will be abused involves
three unwarranted assumptions-that
the Chief Executive is not to be trust
ed; that the Senate can be misled,
and that the appointee will be "a
spineless puppet."
Others See Dictatorship.
There Is another group Of persons
who, in the present posture of world
affairs, profess to see in this program
the seeds Of dictatorship. In view of
the temperate nature of the Presi-
dents proposal. this is strange as
sertion. 1t must not be forgotten that
when Jefferson refused to obey a sub
poena issued by Chief Justice Mar
shall he was charged with being a
tyrant; when Jackson derided an
opinion Of the Supreme Court and told
Marshall to enforce his own decree,
ne was denounced as the apostle of
anarchy; when Lincoln ignored the
demand of Chief Justice Taney that
the privilege of habeas corpus be re-
stored, he was charged with assuming
absolute power. No one of these Presi-
dents was dictator. Indeed, it is
curious to note that all the great
Presidents who have sought to do the
most for the people have been charged
With the assumption of dictatorial
powers and with cherishing evil am
oltlons and unconstitutional purposes
| X X
Finally, it is suggested that the mat