Evening star., 1944-09-24
Disagreeing Supreme Court
Sets Split-Decision Record
58 Per Cent of Cases Find Justices Dividing, With
Liberals, Who Number Eight, Forming
Right and Left Wings Themselves
By Charles G.. Ross.


ported business regulation in other than
Interstate Commerce Commission cases,
they took the position in several cases
that the ICC had failed to protect the
public interest and so voted against the
Government. With the exception Of
Roberts, the right-wing justices gen.
orally supported Federal business regu-
lation during the term, though they were
more favorable than the left wing to the
ICC and less favorable when other types
Of regulation were at issue. Roberts
voted against regulation in 10 of the II
cases in which he took part.
Labor Cause Backed.
In nine cases involving employer
employe relationships, the left wing was
almost unanimously for labor and the
right wing Roberts excepted generally
for labor. Roberts voted for the en-
ployer's side in each case.
In four cases out of five which raised
the question Of the scope Of judicial re-
view, the decisions of the court had a
narrowing effect. Black and Frank
furter were the most emphatic for mar
rowing review, while Reed and Roberts
were the most favorable to expansion.
Five cases involved the constitution
ality Of various State taxes, and the
court upheld their validity in all in
stances except one. Roberts opposed the
State tax in each case In which he
participated, and jackson was against
the tax in four of the i've cases.
1T is evident" Prof. Pritchett
says, that if the terms liberalism and
conservatism are to be given the mean
ings they have had in the past Is years,
there is only one conservative left on the
present court-Justice Roberts" Frank
furter is the closest to Roberts, but not
even he adopts any large part of the
particular complex of ideas" by which
Roberts Is guided.
How, then, is one to explain the
present unprecedented amount of dis
agreement within the court? What of
the 81 decisions in which the eight
liberals" disagreed among themselves?
Liberals Divided Themselves.
I'm part" Prof. Pritchett answers,
these divisions are still explicable in
terms Of differing degrees OF orientation
toward left or right. Liberalism is a
realm broad enough for the develop
ment of its own left and right wings,
between which divisions of opinion con-
tinue, though somewhat more confused,
more bitter and more frequent because
the battle is at close range. Civil wars
may be desperate and bloody.
This explanation, however, is not suf-
hcicnt to account for all the divisions
on the present court. The Contrast be-
tween the clear-cut pattern Of dissent
on the 1887 court and the rather con-
fused pattern Of disagreement on the
1913 court would seem to indicate that
what was previously q one.front war
has become one Of global proportions.
What are these new issues on which the
court Is dividing? Prof. Thomas Reed
Powell (of the Harvard Law SCHOOL, has
recently suggested that the underlying
difference between Black and Frank
furter, whom he takes as symbolizing
two divergent tendencies on the court
Is In their conception OF the judicial
function. "A leaning for getting the re-
suit in the particular case as If 1t were
legislative choice characteristic of
Black, contrasts with a leaning to re-
.spect the outlines and many Of the de-
tails OF an established legal system in
Frankfurter. If this Y correct, we must
add legislator judge attitude scale to
our equipment for the Interpretation OF
Supreme Court divisions. Further dig
ging In judicial psychology may yield
other clues'
1T is clear" Prof Pritchett says in
conclusion, that the Supreme Court is
going through one of the crucial periods
OF its history. There have been dis
agreements before, but the volume Of
dissent, and more particularly its chang
ing character, mark of the present from
previous crises. To some it seems that
the court Is disintegrating, and the law
along with it, A more sober view may
recall Henry Adams theory on the law
OF phase as applied to history, and con-
clude that the court is passing through
the painful process Of change of phase
out of which a new equilibrium will
emerge"
PTinted BY special arrangement with the st.
Louis Post-Dispatch.)