Evening star., 1944-02-06

The present term OF the Supreme
Court Is promising-or threatening-to
set new record for acrimonious ex-
change. Certainly, better-than-fair
start has been made in recent weeks.
The acidity of the language punctuating
decisions is causing eyebrows to be lifted
in the Capital, where official vendettas
are commonplace. And new attention
from the country at large is being drawn
on the court, which, in recent years,
has been more or less in eclipse because
of the war and the absence of important
litigation on the docket
Disagreements in the Supreme Court
are as old as the court itself Some of
the bitterness stirred by clashing philos-
ophies in the early days of the New
Deal still is fresh In memory. AS a
general thing, however the members in
the past were wont to keep their differ
ences within the private confines of the
conference room and the fact that this
practice for the moment at least has
been discarded for ''no-holds- barred
rule of strong written dissents is causing
speculation as to just how deep the
cleavage is.
Obviously, an undercurrent of strong
feeling is present, for there is nothing
casual about the barbed shafts being
tossed around the bench. Instead of the
off-handed asides which. on occasion,
have spiced sessions in the past and did
not find a place in the records of the
II h. Al
belligerent justices Incorporating meas
ured criticism of their brethern in writ
ten opinions, which leave no doubt as
to what was said, and have the perma-
nency of the court itself.
No Wide Split Occurs.
This much, however, can be said with
out danger of dispute: The court has
not yet reached-or on the basis of past
performance, neared-the point where
1t Is aligned in two factions such as
battled over New Deal legislation in
the early 193Os and led to the historic
"court-packing' plan advanced by Pres
ident Roosevelt and rejected by Con-
gresS. Roughly speaking, there is a
liberal" majority in the court composed
of Chief Justice Stone and Justices
Black, Douglas, Murphy and Rutledge
which usually sees eye-to-eye on civil
liberties issues or other broad policies in
volving the public interest
To catalog the others-Justices Rob-
erts, Reed, Frankfurter and Jackson
together or even to label them individ-
ually, is another matter. For they simply
do not follow any discernible pattern.
For example. some of Justice Frank
furter's opinions have been strongly on
the conservative" side, particularly
where the Bill of Rights is concerned.
On the other hand, it was Justice Frank
furter who wrote the celebrated Hutche-
son decision, giving labor unions virtual
prosecution, and he also was the author
of the Phelps-Dodge decision in which
it was held that the Wagner Act COM
pels business concerns to pay wages"
to individuals to whom employment has
been denied because of union back
ground.
Another illustration of the difficulty
of attempting to label the justices was
furnished this past week when Justice
Roberts read the vigorous dissent in an
admiralty case which brought the
division in the court into the limelight
again.
Joining with Justice Frankfurter in
dissenting from decision in which the
court held that a seaman was entitled
to compensation for an injury sustained
when a staging collapsed, Justice
Roberts declared that principle un-
challenged for Is years had been null
lifted, and then concluded with this
blunt rebuke:
L do not advocate slavish adherence
to authority where new conditions re-
quire new rules of conduct. But this
is not such case. The tendency to
disregard precedents in the decision OF
cases like the present has become so
strong in this court of late as, in my
view, to shake confidence in the con-
sistency of decision and leave the
courts below on an uncharted sea of
doubt and difficulty, without any con-
fldence that what was said yesterday
will hold good tomorrow.
He likewise criticized the court for the
about-face within three years on the
Jehovah's Witness hag-salute and
pamphleteering cases.
But while Justice Jackson was with
the majority in the seaman's case
and also wrote the opinion in which the
court reversed its earlier stand to
hold that Witness children did not
have to participate in the flag-salute
ceremony in public schools in violation
Of their religious beliefs, he also was
the author of sharp dissent when the
court, in another reversal, exempted
Witnesses from the payment of NUM-
cipal license taxes for distributing