The Washington times., 1938-12-27
LIBERALS HELD
HIGH COURTS
CONTROL IN '3S
Record Shows Change
In Dominance
International News Service

S4ASAAA0S
nations legal and constitutional
history was wrought during 1898
as a reconstructed Supreme Court
carried forward its policy Of lib
eral Interpretation Of the Federal
Constitution.
While the transformation Of the
High Court began before the
present year, new decisions and q
change in membership gave the
aspect Of permanency to the trans
formation for the first time.
Along with its new constitutional
doctrines, the High Court has re-
stricted its own authority and that
Of lower Federal courts, and has
expanded the authority Of both
Congress and State legislatures.
NO POLICY MAKING
One congressional constitutional
authority holds that the Court has
decided to emerge from the field
Of policy making, and leave this
chiefly to the executive and legiS-
lative branches Of government.
Retirement Of Justice George n.
Sutherland gave President Roose-
velt the opportunity to name .
second Justice to the tribunal. He
chose Stanley Reed OF Kentucky,
Solicitor General, who took his
seat on January 81.
Because Justice Reed had been
the governments chief law Of
ficer In defending new and far
reaching experimental New Dea!
acts, 1t was naturally anticipated
that he would be claSsed as Q
"liberaI' on the court. The ex-
pectation was realized.
The High Court lost q brilliant
Justice when Justice Benjamin N.
Cardozo died last July 8. Presi-
dent Roosevelt will make his third
appointment to the Court when he
fills the vacancy.
Thus, Mr.. Roosevelt will have
appointed one-third Of the justices
Of o tribunal which, in the early
days Of the New Deal, invalidated
many of it's most important laws.
During the year Supreme Court
observers frequently rema X d
that Chief Justice Charles Evans
Hughes and 82-year-old Justice
Louis D. Brandeis were molding
the new tribunal.
DISSENT RECORD
The transformation of the Court
is eloquently told In the record Of
dissents. During the 1895 term
Justices Brandeis and Stone,
known as liberals, diSSented 16
times from majority opinions.
Justices McReynoldS and Butler,
known as conservatives, diSSented
six and five times, respectively.
But during the term ending this
year, Justice Brandeis dissented
but twice and Justice Stone but
six times. In the same term, JUS
tice McReynolds disSented 20
times and Justice Butler % times.
The reconstructed Court, how
ever, apparently has not embraced
the entire legal philosophy Of the
New Deal. Justice Hugo L. Black,
first appointee Of Mr.. Roosevelt,
dissented IS times. In 10 dissents
he was not Joined by any Of the
liberal group on the Court.
Since the Court convened in
October, Justice Black has shown
further reluctance to follow the
NEUTRALITY-SUSPICIOUS. line Of de-
cisionS. In the first two months of
the term, he dissented four times.
In two dissents he was joined by
Justice Reed.
BALANCE OF POWER
Whether the accession Of a new
Justice may cause the Court to
turn further to the cleft" is doubt
full. Chief Justice Hughes and
Justice Roberts apparently will
still hold the balance Of power.
One of the most far-reaching
decisions handed down during the
year was in an obscure case in
volving suit for damages against
the Erie Railroad because Of per
Sonal injury.
In this case the Court, Justice
8randeiS speaking, reversed pre-
cedents Of 90 years standing. Un.
der an old rule, Federal judges
could adopt an independent view
of general law in cases where
jurisdiction was exercised by rea-
son Of diverse citizenship.