Evening star., 1939-06-07

the individual
Charies u. Ross. ism that now
obtains on the high bench.
Time was when the court, with an
exception now and then, had only
two spokesmen on issues decided bv
split vote-one who gave the
opinion of the court" another who
read the joint views of those in dis
sent. Those were easy days for the
reporters and the professors of con-
stltutlonal law. It's different now.
Roughly speaking, the court is
dominated by a liberal" majority
sometimes of five members and
sometimes of seven, with a minority
OF which the -say-die nucleus
consists of Justices McReynolds and
Butler. But the division is rarely as
simple as that in particular cases,
There is sharp diversity of thought
among the liberals" and each of
Them is making point of getting
his individual views into the record,
Many Shades of View.
Soon after he took his seat, JUS
tlce Frankfurter, in a separate con-
curing opinion, said it would be a
"healthy practice for the judges to
express themselves individually. He
should have been gratified by the
way TINS practice was followed on
Monday. No single session of the
court for many years has produced
such a variety of views. Not only
were there majority opinions and
dissenting opinions. but there was
a oewlldering array of concurring
opinions, opinions concurring in part
ana opinions dissenting in part.
In the New York milk case, where
the court upheld the right of the
Federal Government, under the
commerce clause. to fix the minimum
price of milk which either is IN or
may affect the flow of interstate
commerce, the court divided five to
four. The five were Justice Reed,
who read the opinion of the court,
and justices Stone, Black, Douglas
and Frankfurter. But two of these
fVe, Justices Black and Douglas,
would have gone significantly fur
/
ment OF the court except insofar
as the opinion appears to imply that
power OF Congress to enact the mar
ketlng law depends upon the use
and nature of milk" These two
Roosevelt judges did not think the
court was called upon to indicate
that there is such constitutional
limitation on the power of Congress
to regulate interstate commerce"
The four in dissent in the New
York milk case were Justices Nc
Reynolds, Butler, Roberts and the
Chief Justice. The first two stood
together, holding that the statute
under review represented govern
ment by caprice" Justice Roberts
had another dissenting opinion. in
which he was supported by Justices
McReynolds and Butler Chief JUS
tlce Hughes. with qualifica ton, also
subscribed to the Roberts dissent.
The decision in the similar Bos-
ton milk case was by six to three
The Chief Justice in this case
Joined the majority, and Justices
Roberts, McReynolds and Butler
IeIlduleO III assent.
Five Opinions on Hague Case.
1ndividualism was rampant in the
flVe-to-two Hague case. OF the sew
en- justices who took part (Justices
Frankfurter and Reed having ex-
cluded themselves), five wrote opin-
ions. The opinion of the court
knocking out the offending ordi-
nance, on the ground that it con-
travened the rights of citizens un.
der the Fourteenth amendment, was
given by Justice Roberts, who had
the concurrence of Justice Black.
Justice Stone, supported by Justice
Reed, concurred in the result, but
said the judgment should have been
broader, since freedom of speech
and assembly "are rights of personal
liberty secured to all persons with
out regard to citizenship" He OBJ
jected to the creation of novel con-
stltutlonal doctrine . in order to
attain an end easily and certainly
reached by following the beaten
paths of constitutional decision"
The other opinion on the majority
who agreed in part with Justice
Roberts and in part with Justice
Stone. Justice McReynolds and
Butler produced each a separate dis
sent.
The decision in the Kansas child
labor case holding that it was for
Congress and not the courts to
say what constituted reasonable"
time for the ratification of an
amendment, was by seven to two
Justice Hughes spoke for the ma
jority. On the other side were JUS
tices McReynolds and Butler.
Among the majority were four
Justices Black, Roberts, Frankfurt
ter and Douglas-who held that the
petitioners who sought to undo the
ratification of the child labor amend
ment by the Kansas State Legisla-
ture had no standing in the court.
Congress, they maintained, has sole
ana complete control over the
amending process, subject to no ju-
dicial review"
The views of these four were set
out in concurring opinion by JUS
tlce Black and another by Justice
Frankfurter. The court, said this
group, could do no more than give
an advisory opinion" on questions
pertaining to the amending pro-
cess-and, added the Frankfurter
statement, lit is not our function,
and it is beyond our power, to write
legal esseys or to give legal opinions.
however solemnly requested and,
however great the national emer-
gency."
In the Kentucky case, involving
ratification of the child labor amend
ment by the Kentucky Legislature
in 1887, the lineup was again seven
to two. Chief Justice Hughes again
spoke for the seven. This time,
however, there was break in the
ranks Of the four within the seven.