The Bismarck tribune., 1937-10-22

Court Are NOT Exactly lnvunef'
able.
BY RODNEY BUTCHER
Tribune Washington Correspondent)
Washington, Oct. 22-Whether the
supreme courts prestige has suffered
because Of the courts acquisition OF
Hugo Black, who now seems firmly
planted in his new seat. presumably
is a most important question.
Opponents of Mr.. Roosevelt, nearly
all of whom have vociferously pro-
tested Blacks appearance as the
newest justice, are insistent that the
Alabaman's presence there has given
the court terrible black eye and
lowered public respect for the previ-
ously sanctified processes of justice.
Whatever the truth or error Of
this conception 1t seems especially In
teresting to those here who recall that
early in the year the New Dealers
were frankly saying-athough not for
quotation ~ that they did hope to
crack the supreme courts prestige to
point where the people would lose
faith in Its infallibility and where
parliamentary government, meaning
congress, would be supreme.
So If you believe the opposition, it
appears that the New Dealers won .
victory there, although they certainly
are not boaSting of 1t on the same
basis.
X X X
Prospect Of Retaliation
Many lawyers are inclined to believe
that, after the Black expose and re-
sultant hue and cry, it may hereaf-
ter become perfectly good taste in
polite society to talk about the per-
sonal backgrounds and theoretical
prejudices of some Of its other men,
bers. At any rate, word comes from
the inside that there will be further
administration propaganda efforts.
Any attempt to disqualify Black
from sitting in individual cases are
likely to be met with attacks on JUS
tice Pierce Butler and Justice Owen
]. Roberts. Butler was an outstanding
railroad lawyer and among his clients
was the Great Northern railway.
AS a justice, however, he did not
refrain from writing far-reaching
opinions on public utility valuation
standards, and last year he read an
opinion which saved the Great North
ern $l0,000,O00 In taxes which had
been assessed by North Dakota.
Roberts, Hughes and Van Devanter,
who concurred with Butler. had all
represented railroads In private prac-
tice. Roberts, q former director of
the Bell Telephone system, did not
refrain from giving q decision which
held up the rates Of the subsidiary
Chesapeake & Potomac company
above those declared fair by the
Maryland public service commission.
X \ \
Court win Survive
On the other hand. tsis not to be
inferred that justices necessarily
have bias in favor Of former clients.
They merely fail to "sit out" when
former clients bring cases, as Justice
Brandeis did at the time Of the ad-
verse minimum wage decision Of 1929,
because he himself had been active
for minimum wage legislation.
In January, 1885. Hughes. who once
represented Standard OIL interests,
upheld a West Virginia chain store
tax on filling stations which Standard
Oil of New Jersey contested.
But the court doesn't like to be told
that any justice isn't qualified to SIT
in a particular case, and that's one
reason for guessing that such tactics
against Black won't get far. Another
reason is that in the Frizzell- Newman
case, which Hughes cited in denying
Albert Levitt's petition against Black,
the court held that only public repre-
sentatives such as the attorney gen.
eral could bring court proceedings
contesting public officials right to
hold office.
Otherwise, said the court, every
private citizen would have the privi-
lege of bringing such proceedings
land public officer might from the
beginning to the end of his term be
harassed with proceedings to try his
title"
The courts prestige doubtless will
survive in the long run, although its
liberalization" presumably will lead
to invalidation of fewer federal and
state laws.
Copyright, 1887. NEA Service, Inc)