The Bismarck tribune., 1937-08-20

AAVuUhC 3<OVkuS AVE kDaoCA AAku
Court Vigorous Opponent Of
Tribunals Decisions Balance Of
Power to Hughes.
BY RODNEY BUTCHER
Tribune Washington Correspondent
Washington, Aug. 2O.-Friends and
foes of Senator Hugh Black agree
alike that the brief disturbance in the
senate over his confirmation Is likely
to prove mere pop-gun stuff as COM
pared with what may happen after he
gets OH the supreme court.
It IS not necessary to impugn the
judicial temperament" of Senator
Black, if any. in order to demonstrate
the indubitable fact that Hugo has
taken violent issue with the judicial
attitudes of some Of the sitting JUS
tices in the past or to arouse the hor-
rid thought that he may introduce
some Of the rough-and-tumble prac-
tices of the senate floor to the su-
preme courts sacred cloisters.
One does not suggest that the dis
tinguished whiskers of Chief Justice
Hughes are in the slightest danger of
being pulled by the aggressive senator
from Alabama. Figuratively, may
hap but never literally.
The gentleman who will soon be
Justice Black has publicly charged
that bare court majority for years
has been assuming the right on their
part to determine the reasonableness
Of state and federal lav. The consti-
tuition never. gave that majority any
such power" Since the senator was
never mealy-mouthed, the chances
are that he will attempt to bawl out
his conservative brethren of the court,
both in conference and in his opin-
ions, more bitterly than they have
been slammed in years. Black. his
friends and enemies figure, simply
has to let off steam.
The conferences at which the JUS
tices air their views to each other in
complete secrecy may never be the
same again. One prominent lawyer,
friendly to Black. suggests that the
senator's opinions are as likely as not
to contain references to things the
chief justice said in conference. On
the other hand, OF course, Black may
turn out to be at least as dignified
and judicial as the average justice
and perhaps more so.
X X X
May Attack appointment
Another kind of trouble making Is
in prospect through the likelihood
that a to 4 decision with Black on
the majority side will sooner or later
bring legal test Of the validity Of
Blacks presence on the bench. You
can't be sure, but 1t Is considered q
fair bet that some litigant who comes
out on the short end OF such de-
cision will claim that Black isn't a
justice and will then refuse to obey
the law.
The prospect of fighting the valid
ity of Blacks appointment up through
to the supreme court. where Justice
and perhaps others-pos-
sibly even majority = might hold
that Black had no business there Is
SO bizarre yet far from impossible
that the cpurt's dignity might be Sc
riously endangered.
That is why some lawyers predict
that Chief Justice Hughes. whose
great aim is to preserve the courts
prestige, may make some public ges-
ture to make Blacks position appear
solidified.
Arguments have been made that no
vacancy existed in the courEa con-
fin,, xr,hicJ, -, IN ~ svrao% aa,,t 4,
view of Justice Van Devanter,s re-
tirement - and that Black was dis
qualified because he voted for the re-
tirement act, carrying retirement
under which Van De-
vanter resigned. That's a question for
lawyers, however, and the senate -
IS per cent composed Of lawyers-has
voted overwhelmingly to confirm the
senator from Alabama.
4 4 4
Hughes Holds Scales
If Justices Hughes and Roberts
for New Deal laws as they
did this year, Roosevelt will have a
liberal majority" Of s to 3 now that
Black IS to be a justice. But there
Is no assurance Of that and II those
twain return to the narrow interpre-
tattons they made In the 6 to 3 de-
cision against AAA the conservative
justices will outnumber the liberals by
S to 4.
The one thing certain is that
Blacks appointment passes the scales
Of justice to Chief Justice Hughes,
who will now be the man in the mid
die. Heretofore the question often
has been whether Hughes could per-
suade Roberts to vote with him and
the three liberals. Now, il Roberts
rejolns the conservatives both groups |
will be pressuring Hughes to join
them. Whether Hughes or Black will |
out-pressure the other is also an In
.teresting topic for speculation.
Copyright, 1887, NEA Service, Inc)
DIN m HYYYAann