Evening star. [volume] (Washington, D.C.) 1854-1972, 1957-06-12
What the Judqes Soy

Charles Evans Hughes once observed
that "the Constitution is what the judges
say it is" It would be hard to find a
ruling which, in its own way, lends more
support to that comment than the case
Of the two service wives who murdered
their husbands.
Mrs. Clarice B. Covert killed her Air
Force husband in England. Mrs. Dorothy
Smith killed her Army husband in Japan
Both were tried by military courts, as
authorized by Congress, convicted Of
murder and given life sentences.
Less than year ago a majority of
the judges then on the Supreme Court
upheld these convictions. But now the
court has done an about-face, reversing
that earlier decision and setting the
women Free 1t is doubtful whether they
can or will be tried again.
Mondays controlling decision was
currence Of Chief Justice Warren and
Justices Douglas and Brennan. These
four-not a majority of the court-held
In sweeping terms that the wives and
children of servicemen stationed abroad
cannot constitutionally be tried by mill
tary courts-whether the offense be MUIR
der or the theft Of package of chewing
gum.
Justice Harlan, who was with the
majority in last years ruling, concurred
on the narrow ground" that these were
capital cases. He intimated that he might
take a different view with respect to
lesser offenses, but he did not say where
he thought the line should be drawn.
Justice Frankfurter, also concurring, en-
phasized that he was considering and
ruling on "only the trial Of civilian de-
pendents in capital case in time Of
peace. :"
Justice Clark, joined by Justice Bur-
ton, dissented in strong terms. He de-
plored the overturn or impairment of
precedent and condemned the reversal of
last years ruling. I'm substitute there
for" said Justice Clark, sit (the court)
enters no opinion whatever for the court.
1t is unable to muster majority. In
stead, there are handed down three
opinions. But, worst of all, it gives no
authoritative guidance as to what, II any,
thing, the Executive or the Congress may
do to remedy the distressing situation in
which they now find themselves"
1t is not feasible in this space to dis
cuss in detail the several points of view
set forth by the judges in the 80 pages
OF opinions. One point made by Justice
Black is persuasive, however Brushing
aside contentious that the ruling would
afwk aN
armed forces overseas, he declared:
Trial by jury in court Of law and in
accordance with traditional modes Of
procedure after an indictment by grand
jury has served and remains one Of our
most vital barriers to governmental arbi-
trariness. These elemental procedural
safeguards were imbedded in our Constitu-
ton to secure their inviolateness and sane
tity against the passing demands Of ex-
pediency and convenience. :. II our for
eign commitments become Of such nature
that the Government can no longer salts
factorily operate within the bounds laid
down by the Constitution. that instrument
can be amended by the method which 1t
prescribes. But we have no authority or
inclination to read exceptions into 1t which
are not there.
Justice Black, however, was speak
ing for a minority. 1t is impossible to
know what majority might decide in
another case. Thus, while the Constitu-
ton still is what the judges say 1t is,
what they said last year is not what they
say today, and what they say today is
not necessarily what they will say next
year. In this respect, we think Justice
Clark had reason to protest that "this Is
disastrous to proper judicial administra-
ton as well as to law enforcement"