Evening star., 1949-06-30
Supreme Court Ruling
0yerturns Congress
Custom and Practice
Rv David Laurence

two more members are present.
thus making a majority OF con-
gressional committee Of Is. then
and then only is 1t really o lie.
This Is the strange rule adopted
by i've members Of the Supreme
Court of the United States
Justices Murphy, Black. Rutledge,
Frankfurter and Douglas-thus
overturning not only the practices
and customs of Congress in con-
Quoting its business for $50 years
but establishing a new record Tor
usurpation of power. For this
precedent could mean that the
Supreme Court arrogates to itself
the right to tell the House and the
Senate how they shall conduct
their parliamentary rules. prac-
tices and customs.
The dissenting justices-Jack-
son, Reed, Burton and Chief jus
tice Vinson-pointed out in sep
arate opinion that the new de-
cision could conceivably raise
doubts as to the validity OF any
or all legislation ever passed by
Congress without a recorded roll
call. Unless challenged by men,
ber, there is no way Of knowing
whether a quorum was present
when the vote was taken.
Means Endless Delay.
Admittedly there are occasions
when either or both houses OF
Congress decide that they will not
call the roll. for to do so would
mean endless delay. especially
when there is apparent unanimity
In the chamber anyway.
But the Supreme Court now says
1t is the sole Judge of how Con-
gress shall make its rules, GUS
toms and practices. What the
Supreme Court declares is that
unless Congress writes out specif-
ically just what 1t means by its
rules and adheres slavishly to
those rules. then legislation or
committee action can be called
into legal question.
Plainly Congress Is not going
to submit to any such dictation
by the Supreme Court Of the
United States. 1t. too. can make
rules. Under the Constitution,
the Congress can set forth exactly
the rules under which the Su-
preme Court shall operate. If the
Supreme Court is starting to in
trude into the business of Con-
gress, it may find Congress getting
a little bit more explicit. too. as to
how the Supreme Court and the
other courts conduct their busi-
ness.
Thus. for example. what are
the rules Of the Supreme Court
about disqualification? AS 1t is
now. a justice disqualifies or quail
fles himself for his own reasons
to withdraw from or sit in on q
case. The majority of the court
do not pass upon that question.
Should not this. too. be spelled
out so that the rights of q citizen
on disqualification of the justices
may be known to everybody?
Likewise. the Supreme Court of
the United States has q custom
Of its own that 1t grants the right
Of review If less than q majority
Of the court wishes to do so. Is It
not conceivable that Congress may
insist that the right to review q
case shall be vested only in a ma
jority Of the Supreme Court?
Issue in Perjury Case.
The whole issue arose In a case
involving perjury. The witness in
question unequivocally denied
before congressional committee
that he was a Communist or that
he had indorsed. supported or
participated in Communist pro-
grams. .e was indicted for per-
jury and jury in trial court
found that he did not tell the
truth. The witness took his case
to the Court Of Appeals, which af-
flrmed the conviction.
The defendant raised the ques-
ton that the committee was not q
competent tribunal" as the
phrase Is used in law. The argu-
ment was that the committee.
consisting of Is members. had a
quorum Of 13 at the beginning
of the afternoon session on Satur-
day, March /. 1947. shortly after
2 o'clock. but that later on in
the afternoon. when the testimony
was given, some of the members
had left the room. No member
of the committee raised the ques-
ton about the absence of a quo
rum. which is the customary meth
Cd Of procedure, and. of course,
the witness does not have a right
to raise the mo quorum" issue.
The Constitution OF the United
States gives each house of Con-
gress the power to determine what
are Its own rules. Justice jackson,
In his dissenting opinion. makes
the very good point that the max
Ing Of those rules is not confined
merely to writing but that there
are customs and practices which
are accepted by each house of
Congress and which amount to the
same thing as rules.
Justice jackson points out that
not q single prior decision was
cited by the majority Of the Su-
preme Court In this case to sup
port its conclusions. He adds:
"The effect Is illustrated by not
ing that such rule would make
possible the ,invalidation OF not
only this conviction for perjury.
but the perjury act itself. as well
as the judicial code which is now
the source of this courts authority