Evening star., 1938-02-05

NSOUlS Will con-
tend that the President somehow got
what he wanted. Such an impression
Is widely prevalent in Congress itself.
For If Mr. Roosevelt wanted to pack"
the court with his own justices. then
the retirement of two veteran justices
and the appointment of two new
justices supposedly gives the President
majority of the court"
Such statements are. indeed, a re-
Fiction on all the justices who sit on
the court because of the Implication
that the tribunal is a legislative or
political body True enough, there
are differences as to how the Consti-
'tntlon should be construed and these
have given rise to the classification
conservative and liberal" but it
remains to be seen whether these terms
will stick throughout the years
especially as recent decisions sharply
increasing centralized power and Fed
eral control are examined in later
wears when people struggle against
governmental tyranny'or when, as Mr.
Roosevelt himself once said. the same
instrumentalities of power become
shackles in the hands of an autocratic
administration and when there is no
longer "a peoples government" in
of1ice.
One a Real Judge.
Two vacancies on the bench-retire-
ment of Justices Van Devanter and
Sutherland of the so-called conServa-
tive group-have enabled Mr. Roose-
welt to place Justices Black and Reed
on the court. One is a self-conscious
radical with his dissenting opinions
already reminiscent of senatorial
oratory. and the other is real Judge.
The appointment of man who once
took an oath in a secret organization
dedicated to intolerance and religious
higotry will never be erased from the
record. but decisions from the same
man showing tolerance and breadth of
view and not ss-consciousness may
soften the verdict of history.
There is no doubt that the President
accomplished something by his attacks
on the Supreme Court. He focused
attention on constitutional questions.
He caused Nationwide debate to be
held on the subject of fundamental
constitutional principles and he put
the sesrchlight of scrutiny on lower
courts as well as higher courts when
dilatory or obstructive tactics are USED
to interfere with the enforcement of
the will of Congress"
Various reforms in procedure in the
lower courts which are helpful have
been enacted as a result of the Presi-
dents original message. but the big
eest question of all-did Mr.. Roosevelt
scare the court ?-remains unanswered
IT will be unanswered until more cases
are decided and an opportunity is
given to compare the number of re-
versals of precedent that occurred
alter the court-packing proposal was
made with those that We're rendered
before February of last year.
Not long ago Assistant Attorney
General Robert H. Jackson. who now
has been nominated for Solicitor Gen.
eral, made typical campaign speech
before the New York State Federation
of Labor and in it he claimed that the
court had responded to the Presidents
coerclve messages. 1t will be inter-
esting to see whether Mr.. Jackson.
when he argues before the court in his
capacity as Solicitor General-if he
Is conflrmed-goes on the assumption
that the Supreme Court now is po-
litlca'-minded and has an obligation
To do as Mr.. Roosevelt asks lest he
revive his court-paoking plan.
Snn1e ~ he
present Supreme Court since February
OF last year have been a surprise
tn constitutional lawyers. but it will
~ noted that the shift in the court
was made by the votes of Chief JUS
t'ce Hughes and Justice Roberts and
not by Roosevelt appointees.
Inc nrst case of reversal was on the
MINIMUM wage law. But while the
opinions were written after February
). the actual vote in the court was
taken the previous December when
tne case was finally argued. So this
cannot be attributed to Mr.. Roose-
velts message.
Inc next case involved the uphold
ing OF the constitutionality of the
social security law. This was based
on principle laid down by the ma
lority OF the court in the A. A. A case
IN 1885. so here too, one cannot saw
the court was influenced
Labor Act Is Pivot.
The opinion upholding the Wagner
Labor Act is the one on which con-
troversy will center Here some
lawyers contend the court reversed its
ruling that manufacture is not com.
merce, view presented when the court
held the Guffey Act to be invalid in
1895. But the distinction between the
Guffey case and the Wagner Law
cases is clear to those who care to ex-
anime the issues involved Federal
courts have already since the decision
noted the differences. In the Guffey
case the Supreme Court held that a
whole system of regulating wages and
hours was an intrusion into State
powers while in the Wagner Law cases,
the court stressed the power to regulate
interruptions to commerce, q decision
mat parallels the second Coronado
case of several years ago.
Notwithstanding these explanations,
tnere Will be expressed by prO-admin-
istration supporters the belief that
the court obeyed the command of the
President. If this is so, then the
court fight was a moral victory for
Mr.. Roosevelt. But it will be neces-
sary to read few more decisions.
especially during the remaining years
OF Mr.. Roosevelt's terms, to make up
our minds definitely as to whether we
have an influenced court or one that
goes ahead dispassionately from day
to day rendering its opinions and re-
fusing to answer the current misin-
terpretations of its work or imputa-
tons of motive which the politically
minded choose to exploit for political
purposes.
(copyright. 1p3s.D