Evening star., 1940-04-10


trend for a long time to come--but
because of the impact OF social
forces. A change was inevitable;
the time hat come for one of the
swings which have marked the his
tory of the court from the beginning.
Whether or not the court-packing
effort of the President accelerated
the change is a debatable question
and is not here in point. What
should be understood, lest there be
a false conception of the courts
"neWness, is that it entered upon
new phase in the spring OF 1887;
that under the statesmanlike guild
ance of the Chief Justice, Charles
Evans Hughes, the "old" court made
the shift, and made it in an orderly
manner, in sharp contrast with the
shattering method proposed by a
President who had let his impa-
tience get the better of his judg-
ment. The countrys debt to the
Chief Justice for steering the court
through a terribly difficult period
should not be forgotten.
What prompts this return to the
always fascinating theme of the
Supreme Court is speech made
last night before the Boston College
Law School by Attorney General
Jackson. in which he documented
the point that the new pattern OF
court decisions has not been de-
termined by the five Roosevelt ap-
pointees.
The Cases Involved.
There Is so mucn mIsconception Of
the role played by these judges, as
evidenced in Wendell Wilkes re-
cent Saturday Evening Post article
to which Mr.. Jackson replied. that
restatement of the facts may be use
full. The Attorney General takes up
IA decisions cited py Mr. Willkie as
having been produced by "a newly
appointed group of judges Six OF
these decisions-those in the first
T. v. A. case. two of the Labor Board
cases, the minimum wage case and
the two Social Security cases-were
handed down. by the odd court be-
fore any of the Roosevelt appoint
ments had been made. In three OF
the remaining cases, only one OF the
Roosevelt appointees, Justice Black,
had a part, and his vote did not af-
feet the result. In foul other cases
the Attorney General goes on-the
result would have been the same If
the votes of the Roosevelt judges had
been wholly excluded. There is left
but one case of the IA, and that COM
paratively unimportant, in which the
result was affected in any way by the
votes of the Roosevelt appointees,
land in that case" says Mr.. jackson,
they were joined by Mr.. Justice
Stone, a Republican Attorney Gen
eral and, may say. an admirable
one. who had been appointed to the
court by President Coolidge"
The facts amply support the con-
clusion of the ATTORNEY General that
ito charge the Supreme Court with
overturning established principles
and threatening orderly constitu-
tional government because of the
temper of the newly appointed
justices is grossly inaccurate"
If the Supreme Court has actually
been doing this, the blame must rest
in large measure on Chief Justice
Hughes and Justices Stone and
Roberts, all three of whom, in the
handsome and truthful language of
the Democratic Attorney General,
are eminent Republicans whose
locoy,t nf,t lnyon
antedates the New Deal"
Two in Nominee Speculation.
Justices Stone and Roberts indeed
figure in speculation as to the next
nominee of the Republican party for
President. 1t is perhaps needless to
add that this draft" talk has re-
ceived not the slightest encourage
ment from either of them Nor will
it receive any. I only mention their
Republicanism to emphasize that
when the tremendously important
decisions of the last three years
touching general welfare" and the
commerce clause began to come
down, the court was still, in its per-
sonnel, completely the 'old" court.
The direction of the court had be-
come firmly set-it had in fact be-
come an entirely new court in It's
outlook-before the first Roosevelt
appointee took his seat in October
Of 1887.
Whether or not the court Is fol-
lowing a wise course is a matter of
opinion. It's decision In any case Is
proper subject of criticism. But,
as Attorney General Jackson points
out, 1t is unfair to attack the court
by contrasting the Roosevelt court"
with what went before. That form
Of criticism gets outside the bounds
Of the facts. Before cracking down
on the new" court, Mr.. Willkie or
any other critic would do we'll to look
at the record and see just what