Evening star. [volume] (Washington, D.C.) 1854-1972, 1940-02-02

IN stitutional ques.
lions, has taken
Charles G. Ross. the place of the
court against which Roosevelt in
weighed. 1t is the product not only
of Roosevelt but, in a deeper sense,
of the changing times.
Said Attorney General Jackson in
his speech yesterday at the exer-
cises celebrating the courts BIRTH
day: 1.-THE judgments and opinions
of this court deeply penetrate the
intellectual life of the Nation"
That is profoundly true, and it Is
equally true that the Intellectual
life of the Nation penetrates the
judgments Of the court. The court
is what it is today, for good or i'll,
because the Nation is what It Is.
Nation and court react inevitably
upon each other. The whole history
of the court disproves the notion
that it operates in vacuum. 1t is
not true, and it never has been, that
when the judges place a contro-
verted statute alongside the applica.
BILE provision of the Constitution,
one Judgment and one only must
follow. Within the twilight zone
created by the general provisions
of the Constitution there is broad
field for the judges discretion.
History of Pendulum.
From this discretion there flowed
in Marshalls time series Of deci-
sions that made for strong CEN
tralized Government. Then under
fancy came the swing that both
reflected and energized the oppos-
ing doctrine of States rights. Fol-
lowed a period of laissez faire, and
then the period upon which the
court entered in 1887, with its re-
versal of itself on the minimum
wage question and its epochal deci-
sion upholding the Social Security
and the Wagner Labor Relations
acts.
The trend is again toward the
fostering of strong National Gov
eminent. On this road, the judg-
ment of the court in the Social
Security cases, as expressed by
Justice Cardozo, stands as mile
stone. Those we're pregnant words
in which the court, upholding the
right of Congress to spend money
for the general welfare" reaffirmed
"the conception of the spending
power advocated by Hamilton" and
went on to an explicit denial that
the concept of the general welfare
Is static. Needs that were narrow
or parochial a century ago." said
the court, may be interviewer in
our day with the well-being of the
Nation. What is critical or urgent
changes with the times"
REORGANIZATION of Precedents.
The new attitude of the court,
which found expression in the Social
Security and Wagner Act decisions,
is peing repeatedly shown in a re-
examination of precedents. The
rule of stare decisis" 0et the deci-
sion stand has lost its old power.
Precedents are being overturned
right and left. Whether or not the
court is going too fast and too far
in this direction is matter of opin-
ion; it may be a question which will
develop ultimately into as heated
and far-reaching a controversy as
that which the President sought
abruptly to resolve by his court
packing scheme. Old court attaches.
men who venerate precedent. have
been bewildered by some of the de-
cisions and obiter dicta which have
lately come from the court. Law
yers generally are in a state of con-
fusion. So must be, also. the judges
of the lower courts as they see old
sign posts brushed aside. A great
many of the Supreme Court justices
Of the past must be revolving vio-
lently in their graves
A fruitful source of controversy,
now and for the future, is the court S
apparent widening of the powers of
those agencies which create the
growing body of administrative
law" 1t Is all very well, say the
critics Of the court, to set aside
judicial rulings which have become
outworn, but it is a different thing,
and dangerous, to encourage the
administrative agencies in prac-
tees which tend to deny to liti-
giants the full and impartial hear
ing to which they are entitled and
which they would receive under
the judicial process. This, say the
critics, is the direction in which
the court is heading. 1t is quite as
open to the charge of legislating,
they assert, as was the odd court
with its decisions rejecting the
conservative economic predilec.
tons" of the majority.
Answer by Frankfurter.
For the court, the answer to these
critics, as given by Justice Frank
furter in recent opinion, is that
the modern administrative tribu-
mails, for the most part, were set up
to exercise a supervision over eco
nomic enterprise which could effec.
lively be exercised neither directly
through selfexecuting legislation
nor by the judicial process" 1t is
for Congress, the opinion says, to
correct whatever defects may be
found in the workings Of these
agencies. Elihu Root is quoted as
having said Is years ago that we
were moving naturally and inevi-
tably toward the creation Of q large
body Of administrative law quite
different In its machinery from the
old methods of regulation by the
courts.
The questions which are growing
up about this thorny problem Of
administrative law are assuredly
among those which warrant the
prophecy Of Attorney General Jack
son that "the problems of the next
half century will test the wisdom
and courage Of the court as severly
as any half century Of its existence. !"
PoIyeomy in Egypt
Polygamy is still common in Egypt,
according to statistics just pub