Evening star., 1943-06-12

administration is W
in the form of David Lawrence.
bill which, If passed by Congress,
would permit five justices to con-
stitute quorum. Thus three JUS
tices could constitute majority
of the court.
The reason why there OCCASION
ally is difficulty about quorum is
that some of the justices disqualify
themselves from sitting in cases in
which either they have had a part
In private life or in which they may
have participated while connected
with the Justice Department or
some other agency of the Gov
ernment.
No Quorum for 2 Cases.
There are two important cases
before the Supreme Court today for
which admittedly there is no quorum
of six members available. because
four of the nine justices have dis
qualified themselves Three of them
formerly were connected with the
Justice Department. one of them
had a remote connection with the
parties through his law firm many
years ago. They have declined to
sit on the cases.
But the Roosevelt administration
wants both cases tried. One con-
Germs the Aluminium Co. of Amer
lea, which won in the lower court,
and the other concerns the North
American Co. in a test suit of the
COnStltutlOnallty of the so-called
death sentence" or holding COM
pany law. The latter case was won
by the Justice Department in the
United States Circuit Court of
Appeals
If the proposal to change the
quorum from six to five justices had
been advanced when the calendar
was clear of any pending cases that
could be affected by the legislation,
the bill would rest, SO to speak, on
sounder ground. But where legis-
lation is asked specifically to affect
the result in particular cases, the
episode is reminiscent of the dis
graceful chapter in the history of
Congress when a law was passed in
the midst of litigation taking a case
out of the jurisdiction of the Su-
preme Court SO that the lower court
decision would stand. This was in
the post-Civil War days, and the
case is known as In re Savin''-a
Mississippi editor who criticized the
military governor of that area.
Tradition Against Verdict.
The new bill, if passed, would not
permit the North American case to
be disposed Of, because it is a ira
dition of the Supreme Court pro-
nounced as far back as 1884 by
Chief Justice Marshall that the
practice of the court is not to de-
liver any judgment in cases where
constitutional questions are involved
unless four Judges concur in the
opinion, thus making the decision
that of a majority of the whole
court"
In those days the court member
ship was seven, but the principle Of
majority concurrence to decide a
constitutional question has been
i,,+o I,,-t
So with the North American case,
which involves constitutional
question, eliminated even by the
proposed five-justice quorum, the
only case involved would be that
against the Aluminium Co.
This is part of the New Deals
vcngeful persecution against COM
panv which stood trial for five long
years and was vindicated by Judge
. Caffey of the United States District
Court. A motion to dismiss the case
: and let the lower court decision
Stand-which is the rule whenever
there is tie vote. for instance
has been pending in the Supreme
Court for seven months. Since there
Is no quorum of six to try the case,
the New Deal wants Congress to
step in and force a decision.
Summers Offers Plan.
Representative Summers of Texas,
chairman of the House Judiciary
Committee, has made an interesting
suggestion. 1t is that any case row
transmitted by a District Court di-
rect to the Supreme Court shall be
sent to the Circuit Court of Appeals
instead, for final decision, if there is
a lack of quorum in the high court.
But the administration doesn't want
that procedure.
Justices on the Supreme Court
disqualify themselves right along for
one reason or another. If bill is
passed now reducing the quorum
from six to five. there is nothing to
prevent request for another
change from five to four. Actually,
if the pending bill passes, it means
that out of five justices, three can
speak for the Supreme Court.
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