Evening star., 1944-02-06
Supreme Court in Ferment,
Barbed Opinions Indicate
History Repeating Itself as Differences Bring
Sharp Interchanges on Bench With
Roosevelt Appointees Splitting
By J. A. For.

religious literature. Justice Reed, with
the majority in the decision which irked
Justice Roberts, was in the Witness
opposition on both issues. So Justice
Roberts criticism of inconsistency cam
not be construed to apply to PERSONAL
tiles.
The Roberts structures assume more
significance because they follow the
equally pointed criticism of Justice
Frankfurter expressed last month by
Justice Black, who was joined in two
opinions by Justice Murphy in taking
their colleague to task for injecting
personal views on morals and ethics !"
into patent law case, and asserting
further that Justice Frankfurter made
what is patiently wholly gratuitous
assertion as to constitutional law" in
a dissent from decision, strengthening
the rate-making powers Of the Federal
Power Commission.
The personal nature of this attack
was surprising, but insofar as Justices
Black and Frankfurter were concerned,
it was easily recognizable as the out
growth of judicial tug-of war that
frequently has been in evidence over
the past three years.
Backed by Flag Salute.
When Justice Frankfurter, a high
favorite of President Roosevelt. came
to the court in January, 1885, as the
third of the New Deal appointees, it
was with a background that admirers
called liberal" and critics, radical"
But the keen-witted jurist began to
shed this role the following year, when
he wrote the opinion in which the
court got on the Jehovah Witness merry
go-round by holding that children of
the faith must salute the flag if schools
require the observance He took the
other New Dealers on the court with
him that time, Justice Stone being the
lone dissenter.
But few months later new lineup
began to take shape, as the court out
lawed "picketing in a context of vio-
lence' in the Meadowmoor case, with
Justice Frankfurter writing the opinion
OF the court and Justices Black, Reed
and Douglas dissenting. Then came a
decision clamping down on the Federal
Trade Commission and another ham,
mering at National Labor Relations
Board ruling, with the court operating
on the same lines-and 1t became plain
that maverick was loose in the New
Deal corral. At the outset of this re
volt" Justice Murphy was in this new
majority, but as time went on he shifted
to the other side.
In an article on Felix Frankfurter-
Conservative" in Harper's, late in 194I.
Fred Rodell of the Yale law faculty
surveyed the workings of the court, and
commented:
Today, up in the Supreme Courts
marble temple, up where the nine old
men OF a few years back have given
way to seven middle-aged New Dealers
and two sturdy Republican survivors, a
storm Is brewing. Sensitive ears could
catch the rumblings of thunder in the
undertone of dissenting opinion way
last winter, long before Franklin D.
Roosevelt had made his sixth and sew
IS
that the court, which throughout it's
history has always tended, like the
amoeba, to split in two, is splitting
again now and incredible as it may
sound to some, the leader of the courts
new conservative camp is none other
than the jaunty little justice"
Follows Usual Custom.
The passing of two years has not
served to discredit Prof Rodell as
prophet, but time alone will tell if his
appraisal of trend in the court will
be borne out fully. II it is, historians
probably will point to the present term
OF court as definitely marking the turn
ing point.
Also, it may be said that if this hap
pens the tribunal will be doing no more
than following well-established custom.
This evolutionary tendency was re-
marked on by Justice jackson in "The
Struggle for Judicial Supremacy" writ
ten few months before he was ap-
pointed to the court.
Reviewing President Roosevelt's efforts
to get court to his own liking. Justice
Jackson said
Our history shows repeated disap-
pointment of liberal Presidents in their
efforts to effect a permanent or even
standing change of attitude or
philosophy of the court by additions to
its personnel. Why is it that the court
influences appointees more than ap-
pointees influence the court? I point
out certain sustained institutional and
procedural pressures toward conserva-
tism which only the most alert justices
will sense, and only the most hardy will
overcome. Because of these constant
pressures, I would underwrite no fu-
tllreS even r1own