Evening star., 1940-02-11
Significance Of Court
Decisions Discussed
By Owen L. Scott.

Deen one, Is not IN the nel0 OF business
reform or labor power of economics, but
in the field of Government itself. The
President, events now show, has worked
his revolution in the courts
The courts set out rather early In the
New Deal to upset Mr.. Roosevelt's pro-
gram Of reform. They succeeded in over
turning oni after another Of the Presi-
dents pet laws up until the election Of
1896. After that election. President
Roosevelt set out almost Immediately to
upset the courts. In the fight that fol-
lowed, the President apparently lost
when Congress refused to give him power
to appoint one new judge in the courts
Of the land for each Judge over the
age Of 70.
But not since that fight started has the
Supreme Court overturned xeform law.
Not single act has been held unconsti-
tutional in the three years since the Pres
ident directed his attack at sitting judges.
In those three years the Supreme Court
has reversed itself more frequently than
ever before in history-recognizing Fed
eral Government powers that never be-
fore had been recognized. And in that
time President Roosevelt has succeeded
in appointing clear majority, not only
of justices on the Supreme Court. but Of
judges in all of the courts Of the land.
The result is that while Mr.. Roosevelt
lost the court battle of 1897 he now can
say that he won his war against the
courts.
This fact is not so greatly important
for its present implications as for its fu-
ture effects. Right now one reform wave
is cracking up on public reaction and on
the repercussions of foreign war But
another reform wave will follow the war
with its dislocations in the established
order and that reform wave is unlikely
to be checked by judicial interpretations
Of what are constitutional powers.
What has happened to the Supreme
Court is most revealing.
President Roosevelt now has appointed
five out of the nine justices on that
court. He has picked each of those five
justices from the ranks of the active New
Dealers. The acid test has been whether
the individual chosen had demonstrated
under fire that he possessed a liberal"
attitude toward the rights of the indi-
vidual as contrasted with the rights of
property. Not single appointee had
previous judicial experience of any i'm
portance. None had enjoyed any extern
sive practice of the law.
But all were New Dealers and all were
young as judges 60. The five Roosevelt
appointees and their ages are as follows:
Justices Hugo Black, So: Stanley Reed,
S.; Felix Frankfurter, 81; William o.
Douglas, Al, and Frank Murphy, As. This
makes an average age of just under so
years for the new Supreme Court ma
jority.
On one recent decision day of the court
there were decisions in seven important
tax cases. In each of the decisions the
majority upheld the viewpoint of the
Government and thereby revealed that
the day probably is past when big tax
payers can expect the Supreme Court
to protect them from the Legislatures
which are out to find new ways to raise
money or from the tax collectors who
adopt particularly hard-boiled attitude
On that same decision day, the court
held that the rules governing court pro-
cedure need not govern the procedure of
Government agencies that regulate busi-
ness. Here the Supreme Court refused
to adopt an attitude that would ham,
string Government in its expanding eff
fort to guide and govern industry and
finance.
Previously the court had removed the
barrier to an almost limitless expansion
Of Government power under the guise of
regulating the free flow of interstate
commerce.
The result of these decisions is that
any restraining to Government action
must come from the Congress or the
President. In the past American busi-
ness always has operated on the theory
that if Congress was unfriendly, the
President and the courts could be de-
pended upon. Or, If Congress and the
President were both unfriendly, then
there were courts that could not be
touched and could be depended upon 10
take a friendly attitude toward estab-
lished property rights.
Now, however, this barrier to action
that once was found in the courts no
longer is there. Greatly added impor-
tance, consequently, attaches to the atti-
tude Of the President and of Congress.
At the moment, Congress is in a con-
servative frame Of mind. But with the
court barrier removed there is so much
more to be gained by political power
| applied on the Government that the
country can expect in the future to see
Congress veer toward the side of "lib-
| eralism" In order to cater to viewpoints
| Of big groups of voters-farmers, labor
and the aged. among others. When that
happens the veto power of conservative
President will take on great importance.
| It is this whole trend away from a
constitutional check to Government ac-
ton that astute Robert jackson, new
Attorney General and leading New Deal
err sees as the most fundamental accom-
plishment of the last seven years.
| But that trend, in itself, is going to
make job on the Supreme Court much
less exciting and important. The life OF
Supreme Court justice has been excit-
ing because of the power it gave to influ-
ence and shape broad national policies.
With constitutional questions relegated
to the dim background, the Supreme