Evening star., 1937-03-30

years old. He added that he was
graduated from Harvard Law School
in 1928 and appointed Assistant At
toraey General in 1929, serving five
years in that capacity before taking
his present post at Harvard.
''Do you think anything in eco
nomic or social conditions could alter
the views Of the four justices who dis
sented in yesterdays minimum-wage
decision?" Logan inquired
GrSwold then told Of a decision by
Justice Sutherland in 1880 upholding
the right of a defendant in a GRIM
inal case to waive a jury trial. This
ruling by Justice Sutherland was at
variance with the established rules of
law and, according to the witness,
indicated the justice had acquired a
newer and more enlightened outlook.
1T may seem rather surprising for
me to be defending Justice Suther-
land" the law professor declared. but
that decision indicates that even he
is not impervious to changing condi-
tons
Argument Attacked.
Prof Griswold attacked the argu-
ment advanced in support of the bill
that it is in accord with historical
precedents. This argument, he said
is quite without substance.
we have been told that the num-
bers of the court have been changed
on several previous occasions IN our
history" he said. This of course, is
true; but it will not do to jump to
conclusions that those occasions had
anything in common with the present
one"
The witness said the key to almost
all past changes Is found in the fact
that until comparatively recent time
the justices of the Supreme Court were
required to 60 on circuit, actually tc
preside at trials in trial courts in the
several States 70 which each was as.
signed He said that in 1901 the last
Federalist Congress passed an act
creating circuit judges to preside ir
the Circuit Courts, relieving the Su-
preme Court justices of that duty
For that reason the act provided
that the next vacancy which should
occur in the Supreme Court should
not be filed thus reducing the Su-
preme Court from six to Ave members
Before that vacancy ever occurred q
new Congress under the leadership OF
Jefferson repealed the entire statute
and restored the duty of circuit riding
to the members of the Supreme Court
First Increase in 1907.
The first actual increase in the
numbers OF the court was made in
1907, the witness said, to make the
circuit riding somewhat easier. And
in 1887 the court was increased from
seven to nine for similar reasons The
next change from 9 to 10 justices
came in 1863. 1t was to take care
particularly of the California situa-
tion and to help keep that State loyal
to the Union. After the Civil War
Congress developed a bitter hostility
for President Andrew Johnson. 1t
sought to prevent him from making
any appointments to the Supreme
Court and passed a law in 1866 pro-
viding no vacancies in the court should
be filled until the number had been
reduced to seven. Two vacancies did
occur before the end OF Johnson's S
term and the court was reduced to
eight. When President Grant came
into Office in 1869 statue was passed
restoring the court to its membership
of nine.
Prof. Griswold emphatically denied
the story that Grant had packed the
court.
The witness said that he thought
that the majority of the Supreme Court
has sometimes taken a view which
seems too narrow with respect to GER
tain clauses of the Constitution" the
due process and interstate commerce
clauses. Despite this fact. however, he
insisted that nothing should be done
that would interfere with the inde-
pendence of the judiciary. He insisted
that "our system would, in fact, be
changed If this bill goes through. We
would then have established the po-
tential dominance of the executive
branch Of our Government"
There are at least two ways of get
ting rid Of judges" he continued. "One
is to take them out and shoot them as
they are appointed to do in at least
one other country. The other way is
more genteel, but no less effective.
They are kept on the public pay roll,
but their votes are Cancelled"