Evening star., 1939-04-21

c~AA ANA0 tAAoA6ll
a long future.
Charles G. Ross. The seating of
40-year-old Bill Douglas on the
high bench Monday was but a dra-
matte incident in a process that
began with the retirement of JUS
tice Van Devanter in June of 1887
and has now been carried to COM
pletion. The court has been re-
made; further appointments by
President Roosevelt could only, so
to speak, paint the lily of his
creation.
The transformation is quite as
complete as anything that could
have been wrought under the court
reorganization bill of the President,
and 1t has all come about in less
than two years.
But the fact that the court has
been made over in a new image by
the four appointments of Mr..
Roosevelt is not to be taken to
mean that it will cease to be a
battlefield Of ideas. 1t will still be
battlefield, even if Justices Nc
Reynolds and Butler, who alone
carry the banner of the former ma
jority, should be supplanted by men
generally in tune with the philos-
ophy that now rules the court. The
late Oliver Wendell Holmes once
said OF the court: I'VE are very quiet
there, but it is the quiet of storm
center" That is true today and
it will remain true.
Leaven in the Liberal Yeast,
For within the new majority ui
the court, the liberal" majority
that has proved its willingness to
discard doctrines that it believes
to be utmoded-within this group
there are divisions. The very order
IN which the justices are seated on
the bench-though it is determined
wholly by seniority-is suggestive
OF the conflicts and the potential
conflicts of Holmes quiet" storm
center. In the middle is the Chief
Justice. Immediately fanking him
are Justices McReynolds and But.
Ter. Then come. to the Chief Jus
tice's right and left, Justices Stone
and Roberts. Thus the five places
IN the center are filled by pre-
Roosevelt judges: on the wings are
the Roosevelt appointees. Reed and
Douglas at one side. Black and
Frankfurter at the other.
No occult significance is to be
read into this grouping, but it is
interesting to see that seated to-
gether on one of the flanks Of the
court are two men who may come
to form, if they do not already form.
new esoteric chamber of ad-
vanced thought within the cham
Der of liberalism. These two are
Justices Black and Frankfurter
Justice Black in his thinking has
been out ahead of the court, as a
minority of one. on several occa-
slons. Justice Frankfurter, in two
concurring opinions. has charted
a course farther off the track of
precedent than the court. even in
its most liberal moments, has been
willing to go, and in one of these
opinions he has been Joined py
Justice Black.
Holmes Brandeis Torch Advances.
The two men are essentially alike
IN seeing the Constitution as d
highly flexible document. They are
both OF an evangelistic, crusading
turn OF mind. On the other flank
OF the court, Justice Reed, though
far from a conformist, is more OF
a lawyers type of lawyer, and JUS
tlce Douglas is an unknown uuan.
tlty. 1t will be of absorbing in
terest to watch the efforts of Black
and Frankfurter to lead the court
into still a new phase of constitu-
tlonal Interpretation.
The recent history of the court
teaches that the newer judicial liber-
allsm OF Black and Frankfurter-if
one may give it a name-is not to
be lightly dismissed. Holmes and
Brandeis (and Clarke, until his res
1gnation in 1922 expounded a "lati-
tudinarian' philosophy that beat in
vain against the majority philosophy
OF the court. Yet not wholly in vain,
Tor the dissents they wrote had a
profound influence on legal and So
c1al thinking, and their views came
to dilute even the conservative opin-
ions OF the court. Stone, appointed
by President Coolidge, became a
power on their side, and the loss of
Holmes by retirement was repaired
by Hoover's appointment of Cardozo.
They won In the end. The valida-
tion of the Wagner Labor Relations
Act marked the end Of an era.
Mr.. Roosevelt's recent appointments
have riveted the victory and made
1t certain that there will be no turn
ing back.
Now that the victory for the
Holmes -Brandeis school Of thought
has been won and consolidated, new
pioneers. with their eyes on new
goals. have appeared. In the light
OF history, he would be a foolish
prophet who would doom them to
defeat. 1t is only certain that the
Supreme Court will remain a storm
center