Evening star., 1937-02-16

OF its work.
prof Frantfrr- David Lawrence.
ter has often been referred to as one of
the intimate advisers of President
Roosevelt, even though the truth is
his visits to Washington are rare.
Frankfurter has not commented on
the Presidents plan, but it is taken for
granted IN Washington that he did not
have anything to do with it for the
simple reason that he could not have
been a party to conferences on the
subject and allowed the President to
make statements about the alleged
congestion of the Supreme Courts
work which are at variance with the
facts as students of the courts work
know them.
Cites Policy of Court.
Prof. Frankfurter. who collaborated
with Prof. Henry M Hart, jr, in pre-
pairing the last published article for
the Harvard Law Review. makes a
survey of the courts work from Oc-
tober 1884 to November, 1885. In that
article Frankfurter and his colleague
make the following statement:
"A tradition Of prompt disposition
of business for which Mr. Chief JUS
tlce Taft did SO much to lay the
foundation appears to have become
fixed under his successor. For the
sixth successive year the court at
the last term kept abreast of its docket.
1t is not enough, however, for a court
to dispose Of a huge volume of litiga-
tion with dispatch. Especially graft
flying is it that a tribunal with the
Supreme Courts scope of Jurisdiction
should do so with increasing attention
TO those details of administration
which are the safeguards of its proc
esseS against undue pressure and in
adequate deliberation.
Pressure of work has greatly stim-
ulated the invention of procedural de-
vices and accelerated the tempo in
the dispatch of business by the court.
The volume of litigation Of which the
court now diSposeS at a single term.
the smoothnesS of the administrative
mechanism by which this is accom-
plished, the extent 10 which argument
has become a Socratic dialogue be-
tween court and counsel, would startle
the shades of Marshall and Tanev
even as they would have hampered the
eloquence of Clay and Webster"
Reed Commends Promptness.
But 1t is also in the official records
Of the Justice Department itself that
comment on the work of the Supreme
Court can be found The solicitor
general, Stanley Reed, recently sub
mitted his annual survey of the work
of the court and this was made a part
of the report of Attorney General
Cummings to Congress, presented last
month. In that report the solicitor
general says:
During its October term, 1885, the
Supreme Court disposed of 966 cases
on the appellate docket, larger num-
ber of appellate dispositions than at
any of the 10 preceding terms, except
the 1888 term, when 1,025 cases were
disposed Of.
Every case argued or submitted at
the terms was disposed of before ad-
journment (June. 1880. Only 80 cases
remained for disposition, these being
carried over to the succeeding term
commencing october 5, 1886
The work of the Supreme Court is
current and cases are heard as soon
after records have been printed as
briefs can be prepared. Prompt hear
ingS and decisions were had in all
cases of large public interest"
The solicitor general also refuted
In his report another statement made
by President Roosevelt, to the effect
that reviews had been refused in too
many cases. Says Reed:
"The figures disclose that a very
large majority of the cases on the ap-
pellate docket do not possess sufficient
merit to warrant consideration on the
merits. 1t is quite erroneous to re-
gard the Supreme Court as consti-
tuted for the correction of error in
every case. Many petitions for
writs of certiorari (petitions for re-
view are filed which in the light Of
settled practice must be regarded as
entirely without merit
Other Ideas Less Hidden.
What everybody hereabouts wants
TO know is why the solicitor generals
report, which defends the refusal by
the Supreme Court of many reviews
of lower court decisions in unwar-
ranted cases. was not taken into con-
sideration when President Roosevelt
sent his message to Congress.
The truth is that more and more
as the controversy about increasing
the size of the Supreme Court grows
in intensity, the administrations posi-
ton is being shifted away from the
charge that the work of the Supreme
Cou4 is congeSted and hence needs
new blood to the demand that the
Supreme Court be changed because
the judges themselves are too old.
Even this point, however, is proving
somewhat embarrassing because JUS
tice Brandeis, who is 80 years old,
ruled on the side of the administra-
ton on the A. A. A. and various other
acts of the New Deal. So the attack
comes down to quite another point,
namely, that judges are not too old
when they are liberal" as was JUS
tice Oliver Wendell Holmes, who re-
NAMED on the bench till he was 80,
but they are too old even at 81 when,
as in the instance of Justice Roberts,
who is the youngest member of the
Supreme Court, being 81 years of age.
.zy~ I,z, - Sy1rk b.,