Evening Star Newspaper, April 27, 1937, Page 13

THE EVENING STAR, WASHINGTON, D. C., TUESDAY, APRIL 27, 19317. A=13 e O . . A, AR N M A Advocates Court Changes CUNMINGS URGES CHANGEINCOURT Forum Speaker Praises Plan | as ““Simple, Workab{e and Constitutional.” President Roosevelt's plan for re- organization of the Supreme Court Wwas pictured as ‘direct, simple, work- able and constitutional” in an ad- dress last night by Attorney General Oummings. Cummings spoke over the National Radio Forum, sponsored by The Star and broadcast over & national network of the National Broadcast- ing Co. Reviewing the present status of the Supreme Court battle, Cummings contended the President’s bill asking for power to name one new justice for each incumbent over 70 “is the least drastic of all the plans sub- mitted.” “It touches no part of the Con- stitution,” he said. “It impairs no power of the Supreme Court. It‘ entails no disheartening delay. It enables our country to move forward to the solution of the problems that crowd upon us, and it preserves the | [B courts and the Constitution as the | workable instruments of a free peo- | ple.” | Even opponents of the plan, testi- fying before the Senate Judiciary Committee, criticized decisions of the | Supreme Court, Cummings said, | “and now, as if to make the con- clusion unanimous, the Supreme Court, albeit by a narrow margin, has voted itself a ‘Winter garment of re- ! pentance’ and has upset crucial de- cisions of long standing.” Text of Address. The text of the Cummings address | follows: Nearly three months I ve elapsed since the President submitted to the | Congress his proposal for the reor- | ganization of the Federal judiciary. | Now that the Senate hearings, after 8ix weeks of spirited debate, have been brought to a close, let us briefly survey the situation. Those who testified in behalf of the plan pointed out the defects in the existing system and called attention to the unmistakable and improper invasion of the legislative field by | the Supreme Court. With few ex- | ceptions even the opponents criti- | cized the decisions of the Supreme Court and called for effective reme- | dies—presumably by constitutional | amendment. Pitifully few of those | who testified approved in whole- | hearted fashion the course the Su- | preme Court has pursued. And now, as if to make the conclusion unani- mous, the Supreme Court, albeit by & narrow margin, has voted itself a | “Winter garment of repentance” and | has upset crucial decisions of long | standing. | Manifestly these events have con- | tributed to a real understanding of | our present difficulties. The need of Jjudicial reform has been demon- strated. Only the method remains open to debate Lest the proposals of the President | be obscured by words, it is necessary | to keep steadily in mind what they | are and what has already been done | toward carrying them into effect Parts of the plan have met with | almost universal approval. Matter of Injunctfons. In the matter of injunctions and | suits raising oconstitutional questions | I am aware of no serious opposition to the recommendations that the Attorney General be given notice and | an opportunity to present the Gov- ernment’s side of the case, with the | right of direct appeal to the Supreme Court. A measure to this effect has | already passed the House and will | shortly receive the consideration of the Senate. The President also recommended a measure to permit the voluntary Te- | tirement of Supreme Court justices | at the age of 70 upon a pension. A ! bill to this effect has already been | passed and is now the law of the ATTORNEY GENERAL CUMMINGS. land. The Congress has thereby rec- ’ ognized that 70 is a proper age for | the retirement of Supreme Court | Jjustices—just as it has long been | recognized as proper for judges of | the lower Federal courts. | The recommendation for the ap- | pointment of additional judges in order to relieve chronic congestion | and inexcusable delay in the lower courts has met with little opposi- | tion. So far as these courts are concerned, few responsible persons have challenged the need of an en- larged judiciary and a more flexible system | The debate has centered upon the | Supreme Court, and it is constantly reasserted that that court is abreast | of its work. The answer is simple. | No one has contended otherwise, {orl the Supreme Court itself selects the cases it will review and thus controls the size of its own docket. More- over, the opposiuion ignores the fact that, when justice has been speeded in the lower courts, more applica- tions for review will be presented to our highest tribunal, already heavily burdened Load of Court’s Duties. If, as the Chief Justice insists, 60 per cent of all applications for review are “wholly without merit,” there still remain 40 per cent which are subjected, as he says, to “critical ex- amination.” However, let us lay aside altogether the matter of passing upon applications for review, which the | Chief Justice concedes to be “labo- rious,” and direct our attention only to the cases actually received upon | the docket and heard upon the merits. Even then the court assumes a stag- gering load. If each justice labored 10 hours a day, Sundays, holidays and during the Summer recess, he would | have to dispose of the legal papers involved at the rate of more than 30 | pages an hour, and in addition, if we | take the 1935 term as an example, find time, somehow, to hear argu- ments, participate in formal court conferences, examine authorities, and | write his share of 170 full opinions as well as 159 short memoranda and per curiam opinions. Surely it is not unreasonable to say, with a court thus circumstanced, that some way must be found to ease or spread the bur- den. As to the suggestion that an en- larged court might improve its meth- ods by a more efficient division of labor, the Chief Justice intimates that it might be unconstitutional for the court to separate into “two or more parts * * * functioning in effect as ! separate courts.” This is a patent begging of the question for no one in authority, so far as I am aware, | has advanced any such idea. | court to render a decision. Miss it has been suggested that, except in cases of great importance, only a rotating quorum of an enlarged court should sit at a time, leaving the other justices free to write opinions or to examine applications for review. No one has ever challenged the consti- tutionality of the statute under which the court now operates and which au- thorizes a quorum of six justices to discharge its functions. Such a plan has proved to be emi- nently successful in State courts and in the Federal circuit courts of ap- peals throughout the country. The Committee on Jurisprudence and Law Reform of the American Bar Asso- ciation in 1921 suggested a similar system for the Supreme Court. Such a plan contemplates not two or more Supreme Courts, but the efficient use of the personnel of one. Surely the Chief Justice cannot be understood as suggesting that it would be unconstitutional for less than a full If that were true then the Supreme Court has rendered many invalid decisions in the course of its history, and but recently has handed down opinions in which only eight justices participated. Right to Fill Vacancies. Let us now consider another aspect of the President's plan. The right to | fill vacancies created by Providence is unquestioned in the present debate, but we are told that appointments, when made because incumbent justices are of retirement age and do not see fit to retire, constitute “packing” the Supreme Court. Yet the necessity of a systematic replacement system, such as we find in every other field of Gov- ernment, as well as in commerce and industry, has been urged in one form or another by a long line of eminent men, including Justices Miller and McReynolds and Chief Justices Taft | and Hughes The evil they sought to avoid has been growing. In 1789 the average age REE LEEF *CAPUDINE relieves HEADACHE quicker because it's liquid... abeeady dissotred” Fancy Quality Louisiana AWBERRIES On Sale Tomorrow PlNTZ Sc BOXES SERVE WITH SANICO DESSERT CUPS AND WHIPPED CREAM CALIFORNIA CARROTS--- - - >~ 5° CAROLINA PEAS % -.---3-25 FLORIDA TOMATOES-----2* 29° ON SALE TOMORROW of the justices of the Supreme Court was less than 50 years; half a century later, in 1841, when Harrison took over the Presidency, the average had in- creased to 60 years; when the second Harrison assumed the office of Presi- dent in 1889, after the lapse of another half century, the average age had reached 65, and now, after 148 years of national history, the average age has reached the unprecedented peak of more than 70 years. With the utmost respect to those who now occupy the bench, I ask you frankly whether it is fair to a great and vital Nation of 130,000,000 people bent upon setting its house in order, to have a Supreme Court two-thirds of the members of which are over 70 years of age and & majority who are over 75 years of age. I should like to point out still an- other trend. Because retirement is voluntary, the judges themselves ex- ercise great control over the personnel of the various courts, since they may withhold their retirements until a President to their liking occupies the ‘White House. The courts may thus “pack” themselves. Twice as many judges resigned or retired in the Hoover administration as have re- signed or retired in four years of Lhe present administration. Sixty-five par cent of the judges over 70 and eligible for retirement during the first four years of the present administration atill remain upon the bench. Every previous President from the beginning of the Republic who has served & full four-year term has ap- pointed from one to five justices of the Supreme Court. Even Harding, in his short incumbency, appointed four. But now, for the first time, a President has served a full term with- out making a single appointment to the Supreme Court. It is a matter well worth pondering. The President in urging his plan called attention to the need of a “constant infusion of new blood” to “vitalize the courts and better equip them to recognize and apply the es- sential concepts of justice in the light of the needs and the facts of an ever- | changing world.” Soundness of Position. The soundness of the President's position is readily demonstrated. How the Constitution shall be applied in a particular case depends largely upon the experience of the judges and their understanding of the facts—not mere- ly the facts of the case, but the facts | relating to economic and social con- ditions generally, the facts relating to our complicated industrial and eco- nomic system, the facts relating to the way in which business is conducted and the way in which people live. We learn from the recent letter of the Chief Justice that litigants in ordinary cases, such as “controversies over contracts and documents of all sorts,” to quote the Chief Justice, “have no right to burden the Su- preme Court with a dispute which in- terests no one but themselves.” Aside from settling conflicts of authority as between the lower courts, the Su- preme Court devotes its attention to questions of “importance” and to “de- termining constitutional questions, or settling the interpretation of statutes.” Most cases involving such matters, as we all know, arise when large inter- ests seek to avoid the control deemed necessary by organized society. In short, the court has largely ceased to hear private disputes, as such, and devotes its energies to a field of liti- gation which, in many crucial matters, involves censoring the work of Con- gress, the Executive and the States. Questions of Policy. Despite the fact that the attention of the Supreme Court is thus directed, the Chief Justice decries the addition of more justices, for there would be, he says, “more judges to confer, more Judges to discuss, more judges to be | convinced and to decide.” But, of | course, he is careful to speak, as he says, “apart from any question of policy.” However with a court pri- marily concerned in matters involving social and industrial policy, we cannot ignore questions of policy. The point is easily illustrated. Twenty-five years ago, for example, the Supreme Court held valid a statute prohibiting the use of the channels of interstate commerce for | the transportation of women or girls | for immoral purposes. o Five years later, however, the court held that it | was improper to close the channels of P me—— I 1 We Can Remodel commerce to the products of child labor. Yet the Constitation makes no distinction between the protection of women and the protection of children. ‘When another five years had passed the court decided that even women in industry were entitled to no protection and held invalid the minimum wage statute of the District of Columbia. In 1925 and 1936 it again struck down acts adopted to prevent gross exploita- tion of the labor of women. In those three decisions five judges of the Supreme Oourt determined social policy and the scope of the Constitu- tion for 15 years. Then, less than & month ago, again by the narrowest of margins, the line of minimum wage decisions was completely reversed. Who “amended” the Constitution on March 20 last? Not the President. Not the Congress. Not the States. Not the people. The Supreme Court “amended” it by correcting its previous misinterpretation. One Man’s Imporiance. This bewildering history demon- states how courts may ignore patent facts and paralyze both States and Nation by the peripatetic vote of & single judge holding office for life. It demonstrates, too, that enlightened judgment, when it comes, may hang precariously upon the social or eco- nomic views of one man. Small wonder that, in our own day, eminent lawyers and jurists have spoken of the Su- preme Court as “a continuous consti- tutional convention.” a realistically minded court, if our institutions are to thrive—not a reac- tlonary court temporarily in a liberal mood. chinery of amendment was not de- LOWEST RATES POSSIBLE UNREDEEMED PLEDGES FOR™ SALE Your Watch It the movement 15 zond — Keoe, . but why mot put jt mew case with a modern Established 1890 -Opp. Washington Airport_ Use Your Credit CASTELBERG'S 1004 F St M. W, “Play Ball!” What magical words these fine Spring days for “sand-lot champions.” They call for plenty of SANICO Raisin Bread to supply the surplus energy needed for restless hard playing young bodies. There’s no wonder that SANICO Raisin Bread tastes so good . . . is so good for young people . . . everybody. Every ingredient used in SANICO Raisin Bread is the very finest money can buy. Lots of plump, sugary California Raisins rich in iron and other tonic minerals. Creamy white shortening and just the right amounts of milk and sugar to give that wonderful cake-like flavor. Don’t wait until Wednesday to serve SANICO Raisin Bread. Serve it regularly « . . make every day Raisin Bread Day! Other Delicions Samico Bakery Products FRESH DAILY in All Sawitory Piggly Wiggly Stores. The temper of these times demands | It is not the Constitution that | is at fault, and the cumbersome ma- | signed and cannot serve to correct Jjudicial mistakes one by one. Some judges, seeking to read their own views and social philosophies into our fundamental law, insist that, if their Constitution stands in the way of needed legisiation, the only remedy | is by way of formal amendment. And when, over their protest, constitu- tional interpretations are attuned to the facts of the time, such adjust- ments are made not by them but by their brethren. They remain fixed and immutable. When the Natjon moves it moves around them. Lest any one in his heart deny that the courts need “unpacking,” Jet him recall that during the last four years every essential measure the Govern- ment has been called upon to defend has had to be submitted to a court of nine with four votes lost to it in advance. Of course no one desires a sub- servient judiciary. Those who assert that such is the present purpose have grievously misjudged the President and misread the history of our long struggle to free ourselves of all tyran- nies, executive, legislative and judi- clal. must be zealously preserved—but it must be an independence in a very | real and genuine sense, not merely an The independence of our courts | | independence from coercion and im- | Proper influences, but from all ulterior motives and all impulses to invade the legislative fleld, and free, too, from !bllnd subservience to deadening and | obstinate legalism The President’s plan is direct, sim- Ple, workable—and constitutional. Of all the plans submitted it is the least drastic. It touches no part of the Constitution. It impairs no power of the Supreme Court. It entails no disheartening delay. 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