Evening star., 1937-02-23

fully established
If Pres dent n.,.,.
Roosevelt's pro-
posal to enlarge the Supreme Court
should be adopted by Congress. The
various State legislatures and Gov
ernors would then be able to add
Judges in State supreme courts at Will
whenever the decisions of the existing
number of judges happened to be
politically or economically unpalataole
to the party in power.
The average layman is unfamiliar
with the extent to which what
happens with respect to the rules ana
procedure and customs that surround
the United States Supreme Court IS
taken as a justifying precedent 1or
similar action in the judicial branches
of the 48 State governments. If Gov.
ernors of States followed the pre-
cedent set by the President. they could,
with the cooperation of majority OF
both Houses of the State legislatures,
find it unnecessary to change their
State constitutions whenever decisions
of the supreme court of their States
4 held State acts to be invalid. The
simple process then might be to
change the Justices by adding enough
to get a desired majority on the
bench.
No Explicit Power.
As a matter of fact, Congress has
no explicit power to fix the size of the
Supreme Court. Nowhere in the Fed
eral Constitution is there any mention
made of the size that the Supreme
Court is to be- The Constitution does
say that the judicial power is to be
vested in a Supreme Court and it
does say that Congress may establish
inferior courts" now commonly called
flower courts" but the trainers of the
Constitution failed to grant Congress
the specific power to fix the number
of justices of the Supreme Court.
What happened was that Congress in
1879 passed the first judiciary act and
Set the number Of justices at five.
From that assumption of power by
Congress, the precedent has been de-
veloped that Congress may, at any
time, fix the size OF the Supreme
Court.
But while Congress has at different
times altered the size of the court there
Is absolutely no precedent for the set
ting up Of court Of fiuctuating size
and one wherein the number Of JUS
tees is directly related to the fact
of life tenure. The trainers of the
Constitution wanted judges to be free
from politics so they assured them Of
life terms.
Today, what the Congress is asked
to do is to set another precedent-to
fix the size of the Supreme Court con-
tingent upon the age Of the justices
something with which Congress has
really no constitutional right to inter-
fere by any limitation, direct or in
direct.
New Question Arises.
May Congress assume the right to
make the Supreme Court of fluctuat-
ing size and may the Chief Executive
constitutionally ask Congress to alter
the size OF the court when the deci-
sions of that court displease the ad-
ministration in power? This is the
new question that has arisen and since
no warrant for the exercise by Con-
gress of its initial action, in 1889. fix
ing the size of the court on definite
basis can be found in the Constitution,
the passage of the Presidents pro-
posal now means precedent which
would give Congress what some day
6o OF
tty to make the size of the court de-
pendent on any circumstance which
the National Legislature may select.
Thus, If Congress can, as is pro-
posed in Mr.. Roosevelt's bill. delegate
to the President the authority to ap-
point new justices whenever certain
judges reach the age of 10, authority
can also be conferred on the Presi-
dent to appoint certain extra judges
whenever lin the public interest" or
in promotion of the general welfare" +"
the Chief Executive may deem it de-
sirable to increase the size of the court
80 as to neutralize or render ineffec-
tive the decisions of majority of the
existing justices Of the Supreme Court.
Age Standard Arbitrary.
The use, In other words, Of the
words "70 years of age" as justifi-
cation for altering the size of the
court hardly constitutes legislative
standard for the exercise of the ap-
pointing power by the Chief Execu-
tive when in fact no limitation on
age, either as to the appointment OF
justices in the first instance or their
retirement, is covered by the Constitu-
ton itself.
Congress, it will be noted, has not
been asked to pass a law preventing
the Executive from appointing justices
who happen to be SO years old, or even
10. The appointing Of new judges Is
to occur only when the existing judges
have reached the age of 10 and also
shall have served 10 years on the Fed
eral bench. Should they be 50 years
old and not have served on the Fed
eral bench they are plainly eligible for
appointment and can serve 10 years,
namely, until they are 70, before an
additional justice can be named un-
der the Presidents plan to relieve
tlfcIIl, oO W cpCdh, vi VIC dAISSSA SoAA
gestion Of their work.
But the fact that the Presidents
bill was aimed only at the particular
six men over 70 years of age, all OF
whom have already served 10 years
or more on the Supreme Court bench
is no longer disputed in official quar-
ters because the speeches of the ad-
ministration spokesmen are openly
discussing the views Of the justices as
q basic reason for the new legislation
Thus important precedents affect
ing in the long run the judicial power,
not only of the Supreme Court of the
United States, but the highest courts
In the various States. are about to
be considered by Congress at the>be-
hest of the President.
(Copyright. 1879