Evening star. [volume] (Washington, D.C.) 1854-1972, 1937-03-11


largement of the Supreme Court, the
plausibility of the other side of the
matter is not being overlooked by the
large number here who dissent.
Thus Mr. Roosevelt talks about
three-horse team and the need for get
ting efficiency in Government. One
need not traverse far inside the United
States Government to find men, them
selves violently opposed to fascism and
dictatorship, who will be able to prove
to you rather convincingly that if really
efficient government is wanted Mr..
MuSSolini and Mr. Hitler have the most
direct machinery for achieving it. Not
having to bother with parliamentary
body, being able to issue DEGREES that
have the force of law, there can be no
Doubt that one-man government has
1t all over a democracy If absolute
efficiency is the goal, then democracy
has plenty of defects Indeed, it may
be said that the price of liberty is the
endorsements of democracy.
Brandeis Held View.
This view was expressed by no less
q liberal than Justice Brandeis IL years
ago when he was SO years of age and
presumably then considering the new
age standards in the full vigor of his
liberalism. Said Justice Brandeis in
the famous Myers case:
The doctrine of the separation of
powers was adopted by the convention
OF 1887, not to promote efficiency, but
to preclude the exercise of arbitrary
power The purpose was, not to avoid
friction, but, by means of the inevitable
friction incident to the distribution of
the governmental powers among three
departments, to save the people from
autocracy."
If the Presidents plan is adopted
BY Congress and thus a precedent is
established for future enlargement of
the Supreme Court, there would be
nothing to prevent some other Presi-
dent from deciding that IS or so years
was an advanced age, depending on
how many justices of the Supreme
Court he happened to feel were not
rendering decisions in accordance with
his wish, BY adding justices who did
agree with Presidents views, the way
is opened up to influence decisions of
the Supreme Court by merely adding
Justices.
Threat Lies in Future.
When Mr.. Roosevelt says his record
rs Governor and President is sufficient
assurance that religious freedom would
not be interfered with by his pro-
posal, the opponents of the PROPOSE
tom ask how Mr.. Roosevelt can give
assurance against the views of some
other administration or Congress,
after both he and the present mem
bers of Congress have retired from
office.
Indeed. II it is constitutional for
Congress to provide not fixed court
Of definite number but court of
fuctuating siZe-something that has
never before been done-then the basis
for such action opens up a variety of
possibilities. The Roosevelt plan de-
clares that new justices shall be added
contingent upon the age of present
justices. The same principle can be
applied to decisions. In other words,
it could be set forth in the act of
Congress that any number of justices
could be added whenever majority
OF the court ruled adversely on the
Federal Governments power to regu-
late wages or hours or anything else
desired by the legislative body and the
President. To make the size of the
court contingent on age is not very
different from making it contingent
on some other characteristic of the
Supreme Court, including principles
Of its decisions.
Constitution Specifies Life.
The view is growing here, therefore,
that Mr.. Roosevelt's plan is not at all
within the Constitution, as he argues,
but plainly in violation. The President
says, for instance:
Il suggest only the addition of
Justices to the bench in accordance
with a clearly defined age limit"
But the Constitution sets forth that
Supreme Court justices shall hold
ONCE for life and there is no congress
sional power whatever to set any age
limit or to impair the decisions of the
Supreme Court by an attempt to defeat
the life tenure provision OF the
Constitution.
The question being asked, now that
the President has made over the radio
his best arguments for the enlarge
ment plan, are numerous, but none
more vital than this: What powers
does the Federal Government lack
which could arrest boom like that
Of 1929?
The query, stated in another way,
is: What can anybody suggest IN
addition to the powers over banking,
over security exchanges, over credit
and finance generally-powers already
upheld by the Supreme Court-that
may be urgently needed to meet the
crisis of which the President speaks?
No Request in Congress.
Inquiry here does not disclose any
request of Congress for more powers
to deal with a financial or economic
crisis. There is, to be sure, much
discussion of how to handle the labor
problem but the Supreme Court has
not yet acted on the Wagner labor act,
and labor unions themselves, when it
suits them, do not wish to avail them
selves of the protection of the Wagner
act, as for instance in the General
Motors strike.
The principal point made by sew
eral members of Congress who are
inclined to be sympathetic with Mr..
Roosevelt's plan is that even if it were
adopted it would never achieve the
purposes he has outlined. Impracti-
cality is suggested on every side. par
ticularly by those who declare that
the President could get no assurance
OF unanimity with a court of nine
men, much less with a court of Is
men, Knowing the nicetieS of legal