Evening star., 1941-06-15

United States.
Harris -E1Ding Photo.
I President, he held aloof After the
Wagner Labor Act decisions he asked:
| why run for a train after you've
| caught it?"
The three appointees have expert and
| practical knowledge of Government On
the bench they are more likely to be
| realistic" than theoretical"
| The President has attained all the
| specific objectiVeS of the then-revolu-
tionary court reorganization proposal.
| After July l, when Chief Justice Hughes
! formally retireS, there will be no justice
over 70 years old; a proctor, now called
"a director of the administrative Office
of the United States courts" attends to
| budget ana other details formerly under
the Justice Department, there are legal
| restrictions to prevent lower court Judges
! from issuing a decision on a constitu-
| tional question without first notifying
/ the Attorney General. and any lower
! court decision involving a constitutional
! question may be Immediately appealed
to the Supreme Court.
Legislation by the Courts"
! But on Legislation by the courts"
| there is still controversy in the highest
| tribunal, with the justices following the
| New Deal philosophy in disagreement
| among themselves.
In the "old court" when Justices
! Butler, Sutherland, Van Devanter,
D0No ortS
composed the conservative" majority,
and Justices Holmes. Brandeis, Stone
and occasionally Chief Justice Hughes,
| were the liberal" minority, the issues
! were usually clear-cut on lnterpreta-
tions Of constitutional questions of 'due
process" the commerce clause" and
! the powers of the people and all divisions
| of the Government under the 10th
! Amendment. Now the judicial legisla
ton" controversy Is concerned with
scope of specific legislative enactments.
Justice Stone, in the former days,
protested vehemently and at length
| against judicial trespass" on the legis-
| lative field by the conservatives
through their interpretations of due
process" and the 10th Amendment. In
his classic dissents in the original Agri-
cultural Adjustment Act and in the New
York minimum wage cases he exempli-
fed the type of justices Mr.. Roosevelt
said ne would appoint to the court Yet
during the term just finished he likewise
protested against what he called legis-
lation by the New Deal majority in its
Interpretation of statutory law, as in the
Phelps-Dodge and the Guthrie cases.
Legislative Responsibility.
AS follower of the philosophy of
the venerable Justice Holmes, Justice
legislative branch of Federal and State
government to lay down policy and to
define the boundaries of the law
On the Interpretation of statutes dur
ing the last term. Chief Justice Hughes
and Justice Stone often joined in dis
sents or in separate opinions against
the majority of the New Dealers,
notably Justice Frankfurter. Justice
Roberts was the most consistent dis
senter, several times standing alone.
The Phelps-Dodge, the Anheuser-
Busch and the Classic and the Guthrie
cases were typical of the disagreements
over construction and extension of
statutory language.
The language of the statutes involved
general. AS in many other instances,
Congress for political reasons was prob
ably afraid to be specific. The Phelps
Dodge case called for judicial review
of the National Labor Relations Board S
ruling that in "effectuating the policy" of
the Labor Relations Act it had author
ity to order a company to offer employ
ment and give back pay to persons de-
MED employment because of their union
activities.
Stone on Laws Limits.
In the lengthy majority opinion. which
seemingly gives the board unlimited dis
cretion, Justice Frankfurter declared
that Congress had delegated to the
board the power to ascertain facts and
to do everything necessary to carry out
the policy of the law.
Justice Stone, with the concurrence
of the chief justice, while agreeing that
there had been discrimination against
the union men, declared that while the
law provided for reinstatement" it was
silent on ordering an employer to hire
applicants for work who had never been
in his employ and to compel him to give
them back pay. He continued:
"The congressional debates and COM
mittee reports give no hint that in en-
acting the National Labor Relations Act
Congress or any member of it thought
it was giving the board a remedial power
which few courts had ever assumed to
exercise or had been thought to possess
and we are unable to say that the words
Of the statute 90 10 far. The authority