Evening star., 1940-01-08

which has al.
Charles G. Ross. ready been we'll
established.
BY his appointments. the Presi-
dent has projected the new outlook
far into the future. but the change
actually began before he had re-
placed single one of the old court
majority against which he inveighed
In the famous horse and buggy" in
terview
1t was the old court. the nine
old men, of the cynical and shame
less attacks which came to a head
in the court packing scheme-it
was this much -maligned body which,
in the spring of 1887, by vote Of
5 to 4, threw precedent overheard
and sustained the Washington State
minimum wage law for women If
there remained any doubt as to how
the wind was blowing, it was re-
solved a couple of weeks later when
the same personnel, by the same
majority, upheld the Wagner Labor
Relations Act.
COurt NdtCneS Up.
A definite period in the history
of judicial decisions came TO an end
in March-April, 1887, and a new
period began. The court in the ma
tural course of events had caught
up with the advanced thinking Of
the great dissenters, HOLMES and
Brandeis. 1t was not until August,
1887, that the first of the Roosevelt
appointees, Justice Black, joined the
court
1t may be argued that Mr.. Roose-
velt's attacks on the court acceler.
ated the change. Perhaps they did.
though no one can ever say this
with certainty. But in any case the
change would have come. The
social thinking of the country. as
expressed in every election begin.
ming with 1880, had got far ahead
of the conservatism of the court.
Legal thinking. if it was not to be-
come discredited, had likewise to
go forward.
There is bound always to be a
lag of legal thinking behind social.
1t is we'll that there should be- lest
social change run amok The func.
ton of the courts is to put up danger
signals, as the Supreme Court
wisely did when it voted. 9 to 0. to
kill the N r. A. But the lag can
be allowed to become great only at
the risk of imperiling the whole
democratic process.
Guided Out of Rut.
Where the President erred was
in offering a scheme that was even
more perilous. He proposed to take
up the slack between the courts de-
cisions and the New Deal laws by q
device that struck at one of the
fundamentals of the Constitution
the independence of the courts.
Happily he was soundly defeated.
Happily. too, the craftsmanship Of
Chief Justice Hughes guided the
court out of the rut into which it
had fallen and thereby destroyed all
reasonable ground for complaint
that it was standing in the way Of
progress.
For the seat made vacant by the
death of Justice Butler-the last but
one of the thick-and-thin conserva-
tive old guard on the court-the
President would have done we'll to
choose an outstanding jurist from
State or Federal court. He might
we'll have followed the example Of
the first Roosevelt in naming Oliver
Wendell Holmes and of President
Hoover in the selection of Benjamin
N. Cardozo Already, by his first
four appointments of New Dealers,
Mr.. Roosevelt had put an imprint
on the court that will last far be-
yond his term of office. He would
have done no hurt to the progressive
cause and he might have added USE
fully to the technical skill of the
court by naming an experienced
judge. without regard to the latter's
political or economic views.
Technical Skill Important.
Technical skill-legal craftsman
ship-on the court is important. A
friend once sympathized with the
late Justice Cardozo because of the
terrific work. as it appears to the
layman, that must be involved in
the making of great decisions. JUS
tice Cardozo dissented. The great
decisions, he said, were easy, for
the answers flowed, as a rule, from
convictions clearly held. What was
far more likely to cause him Sleep
less nights was some obscure point
of law, the decision upon which
would mean nothing to the layman,
but might have far-reaching effects
on the intricate legal system. There
are few great issues to be decided,
but many such points that arise in
the routine cases comprising the
great bulk of the courts work.
A criticism, then, may be entered
IN the matter of Mr.. Murphy's ap-
pointment, for on the score of legal
knowledge there are others better
qualified. It is not an appointment,
however, that need provoke any
misgivings. Within the limits that
the President fixed for himself in
making 1t, 1t is first-rate appoint-
ment. Mr.. Murphy is an able and
exceptionally high-minded man.
His devotion to the public welfare
is beyond question. Some Of the
first principles of the democratic
faith are brilliantly set out in
speech he made here yesterday on
'The Challenge of Intolerance" He
has grown since he cam to WASH
ington as Attorney General and it is
safe to predict that he will continue
to grow as justice of the Supreme
Court.
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