Evening star., 1939-06-11
Decisions of Supreme Court
Are Redefining Constitution
Four Appointments Have Presented Mr.. Roosevelt
Liberal ority Despite His Defeat in
Fight on Conservative Justices
By Raymond p. Brandt.


United States Supreme Court continued
the reinterpretation of the Constitu
ton it began in the spring of 1887 after
President Roosevelt had demanded
power to reconstruct the courts men,
bership.
With the death of Senator Robinson
of Arkansas, Mr. Roosevelt lost the bat
tie for his ingenious and drastic plan
to infuse new blood" into the court to
make it function in accord with mod
ern necessities" A review of the deci
sions of the court during the term just
ended demonstrates, however, that he
has won the war against the conserVa-
lively minded justices who. he said, had
relegated this country to the horse and
buggy days" by their judgments on
early New Deal laws. Although the
President was denied the power he de-
manded of Congress to make additional
court appointments, the natural course
of events allowed him to attain his OBJ
jective.
-Four justices appointed by the Presi-
dent were sitting with the court when
it recessed Monday. At the extreme
right end of the bench were Justices
Black and Frankfurter; on the left end
were Justices Reed and Douglas. In the
center of the bench was the chair of
Chief Justice Hughes, vacant because of
illness. Also vacant was the chair on
the right that of Justice .McReynolds,
who started his holiday before the final
Nay of the term. To the left of the
Chief Justices chair sat Justice Butler,
presiding. Sitting next to the New
Dealers we're Justice Stone, a Coolidge
appointee on the right, and Justice
Roberts, Hoover appointee, on the left.
New Blood Responsible.
The new blood was responsible for
the denominations of the so-called
established principles" of constitutional
law and challenges to the doctrine of
stare decisiS. Justice Frankfurter an
nounced in his first opinion that the
ultimate touchstone is the Constitution
itself and not what We have said about
it." This new legal approach was fol-
lowed bv the other New Deal members,
sSFtl Oh tlilICS Will LllC SOilIul CllIE VI
the Chief Justice and Justices Stone
and Roberts. Justices McReynoldS and
Butler remained adamant against the
modern interpretations and in their dis
sents repeatedly declared that the very
foundations of the Republic were being
seriously impaired by the current rul-
ings.
Two patterns stand out in the decisions
of the past termS-judcial approval of
the enlargement of Federal powers at
the expense of the States and judicial
reluctance-at times a refusal-to en-
croach on the executive and legislative
departments of the Government.
Tax Precedent Reversed.
The change in court personnel was
responsible for the invalidation of the
120-year-old precedent regarding inter-
governmental immunity of taxes and for
reconciling approval Of later New Deal
laws with the invalldation of the Ma
tional Industrial Recovery Act. the Ag-
ricultural Adjustment Act and the Guf-
fey Coal Act by the old court. In the
places VI CuSUlCtS v dll DeNdll6I anu
Sutherland were Justices Black and
Reed. while Justices Frankfurter and
Douglas had taken the places created
by the retirement of the venerable JUS
tice Brandeis and the death of the schol-
arly Justice Cardozo. The two latter
but their successors have already dem
onstrated that their approaches to the
Constitution and their interpretations
will not hinge so much on precedent as
on the social and economic conditions
in the country as they see them.
Perhaps the most farreaching deci-
sions related to interpretations of the
commerce" clause to affirm Federal
subsidies to farmers and to extend the
National Labor Relations Act to plants
heretofore regarded as doing a solely
intra State business. In sustaining the
Agricultural Adjustment Act of 1887 and
the Agricultural Marketing Act of 1883
and the Tobacco Inspection Act, the
court implied that it would look with
favor on the newer wages and hours law
and its child labor provisions.
In the celebrated Tennessee Valley
Authority cases, the court, while not
passing directly on the constitutionality
of the law, actually limited its own
powers when it decided that the COM
planning private power companies had
no standing in court because they had
no legal right to be free, from competi-
ton.
Sit-DOwn Denounced.
Of the six labor disputes cases heard
by the court, the Labor Relations Board
was wholly successful in two, partly sue
cessful in two and in part reversed and
In part sustained in two.
The most spectacular case was that
of the board against the Fansteel Metal
lurgcal Corp, which involved the legal
ity of the sit-down strike. Chief Justice
Hughes, speaking for the majority, used
his strongest language in denouncing the
Sit-doWn strike as an unlawful mode of
industrial warfare, "a high-handed pro-
cedure for unfair labor practices"
But, in this case, the court accepted
the boards findings that the corpora
ton had been guilty of unfair labor
practices when it issued anti-union
statements and employed labor spies"
Justices Reed and Black dissented in
part, asserting that the sit-down strikers
we're immune from discharge because
the corporation had been guilty of un-