Old Men in Black

Vast in importance to the New Deal is the character of the new Congress elected three weeks ago. But trivial is the importance of that Congress compared to the current political importance of the U. S. Supreme Court. For what Congress can do, the Supreme Court can undo. New Dealers last week looked forward with less interest to the doings of Congress than to the answers the Supreme Court will give to a variety of critical questions at its current term.

Outside the small, chaste chamber that once used to house the Senate there was one question which, if put to any of the nine black-robed Justices on the bench, would have resulted in a summary contempt of court citation. The question: Will the Supreme Court follow the election returns? Forthcoming decisions from this august tribunal on NRA, on AAA, on gold contracts, on railway pensions, on collective bargaining, on farm mortgage moratoriums, on many another headline issue will supply an answer that no amount of charming insistence from the White House, no thumping majority votes in Congress can override.

State Cases. No important case involving President Roosevelt's New Deal has yet been decided by the Supreme Court, though a few state laws paralleling New Deal measures have. Minnesota passed a law whereunder, if a landowner defaulted on his mortgage, the mortgagee could not foreclose for a period of two years. The Supreme Court in that case held that, in an emergency, a state had the power to set aside contracts. Again New York passed a law providing for minimum milk prices. Twice the Supreme Court has upheld the State's power. Apparently the majority of the Court is disinclined to let a strict interpretation of the 14th ("Due process of law") Amendment stand in the way of economic experimentation by states in times of emergency.

Federal Cases. A generally similar issue is involved in whether Congress had the right to invalidate all contracts calling for payment of gold or its equivalent. Last week Attorney General Cummings announced that he will argue the question in person before the Supreme Court. Since the lower courts have generally upheld the law, Mr. Cummings is probably not risking his reputation. One case involves a New Yorker who wants payment in the equivalent of gold for a $1,000 bond of the Baltimore & Ohio Railroad--that is, 1,693 paper dollars valued at 59-c- each. Three similar gold cases involving Missouri Pacific obligations, a Liberty bond and treasury certificates are before the Court. Last week the Supreme Court granted the Government's request to let Mr. Cummings argue all four at once on Jan. 8.

If the Court should hold against the Government the whole economic structure of the country would be badly rent. Many a corporation would go bankrupt and the U. S. Government would find its debt increased by two-thirds. But the likelihood of the Supreme Court denying the validity of the gold contract law is considered relatively remote inasmuch as the Constitution specifically gives Congress the power to "coin money, regulate the value thereof...."

If Congress had equally clear authority for other New Deal measures, the Administration would feel more comfortable. The Tenth Amendment says that all powers not delegated to the U. S. by the Constitution are "reserved to the states." Hence it does not follow that if the Supreme Court takes a liberal attitude toward economic experiments by the states, it will also approve similar experiments by the Federal Government. For its acts the Federal Government has to show authority in the Constitution. Some New Deal laws proclaim the existence of an emergency but most of them seek to find additional authority in the power of Congress "to regulate commerce with foreign nations and among the several states...."

Congress has dangled this clause at the head of nearly every New Deal measure from the National Industrial Recovery Act down. The Supreme Court may well decide that what constitutes interstate commerce is a question of fact not to be determined by a few words struck by Brain Trusters into the preamble of a bill.

It is quite possible that a liberal justice would vote to give California Convict Tom Mooney a hearing (as the Supreme Court did last fortnight) or to uphold a state mortgage moratorium law and then balk at the idea of pensioning all aged railroad employes, fixing the price of ice in San Antonio or the price of a hair cut in Jersey City or enforcing collective bargaining in a steel plant--all on the legal theory that these things help to regulate and maintain the free flow of interstate commerce.

Two cases now before the Supreme Court raise that issue. The Amazon Petroleum Corp. and the Panama Refining Co., both of Texas, are appealing against limitation of their oil production under the petroleum code upon the ground that they are not engaged in interstate commerce and are therefore exempt from the provisions of the Recovery Act. One Federal court upheld their contention. Another overruled them. The Supreme Court must decide.

Many another test of New Deal legislation is on its way up through the lower courts. A milk dealer in Southern Indiana has challenged the right of AAA to enforce its milk licensing clause. Reason: the company is not engaged in interstate commerce. The Louisville Joint Stock Land Bank has challenged the Frazier-Lemke Act after a farmer owing the bank $7,063 invoked the law in order to save his property from foreclosure. In Tennessee 600 manufacturers of hard wood have got a decision from a Federal Judge that, in selling 40,000,000 feet of lumber to Fisher Body Corp. at some 15% below code prices, they did no legal wrong. In Oklahoma a Federal judge dismissed indictments against two automobile dealers charged with buying used cars and selling new cars at below-code prices. Grounds: that the sale of an automobile from a man living in Oklahoma City to another man living in Norman, Okla. is not interstate commerce.

Court. Nine old (average age: 69) men in flowing black robes wall settle these and many another New Deal question. Their answers may in some instances come too late to be of more than academic interest--but their power to make and unmake a political Administration remains undisputed. Quidnuncs like to divide the court up into liberals and conservatives. Such a procedure works well for the generality of cases but foolish is the liberal lawyer who considers his case won because he can count five so-called liberals on the Supreme bench before him.

Chief Justice Charles Evans Hughes is not the senior member of the Supreme Court although he served there before any other of its present members. President Taft put him on that bench as an Associate Justice in 1910 and the Republican Party lured him off in 1916 to run unsuccessfully for the Presidency. But the G.O.P. has more than made up that defeat to him. He served Warren Harding and Calvin Coolidge four years as Secretary of State and in 1930 Herbert Hoover gave him the highest judicial post in the land. Where does the Chief Justice stand today? New Dealers find it a delicate point. In such liberal victories as the Minnesota Moratorium and the first New York Milk Control cases. Chief Justice Hughes's vote was decisive in 5-4 divisions of the court. Yet New Dealers do not count upon him in the long legal pull ahead.

First among the Associate Justices is Willis Van Devanter who has been on the Supreme bench since 1911. The New Dealers have written him down as their opponent, perhaps their ablest one. Seldom does he write opinions but his verbal views delivered to his colleagues in camera bear great weight. As a youngish Republican lawyer he originally went to Washington on the ample coattails of the late Senator Francis E. Warren of Wyoming.

Second in seniority upon the bench is Associate Justice James Clark McReynolds. Him the New Dealers eye with even greater distrust. He was Woodrow Wilson's Attorney General and that President excused him from his Cabinet by appointing him to the Supreme Court in 1914. He has the reputation of doing less work than any other member of the court, of being crustier than most. New Dealers would hate to see him write an opinion on their unemployment insurance law.

Last week Associate Justice Louis Dembitz Brandeis, whom President Wilson also placed upon the bench in 1916, unceremoniously celebrated his 78th birthday. Though the oldest member of the court, his health is still good, his step quick, his mind vital. As the best anti-corporation lawyer of Wilson's day, Brandeis was for Labor, for Reform, for Social Improvement in a passionate way. He still is. Yet he is unconvinced of the divine nature of any man and accepts President Roosevelt's New Deal with certain reservations which his friends are sure will make startling news this winter. As set forth in his famed dissent in the Oklahoma Ice case (TIME, April 4, 1932), he believes that the states should have a free hand as laboratories of economic experimentation. Yet the Federal experiment of NRA displeases him by its sheer size.

The next two members of the court, in order of seniority, are both conservatives. Associate Justice George Sutherland was born in England and brought up in Utah. He served twelve years as a Senator from that State. Defeated for re-election in 1916, he was given a lifetime job on the Supreme Court by President Harding six years later.

Associate Justice Pierce Butler of Minnesota used to be a law partner of William D. Mitchell, President Hoover's Attorney General. Mr. Justice Sutherland, a courteous old gentleman of 72, has angered liberals because he resolutely holds in his opinions that most efforts of states to regulate industry were contrary to the 14th ("due process of law") Amendment. Mr. Justice Butler has them equally enraged. He resolutely holds against citizenship for pacifists and for convictions for criminal syndicalists.

Associate Justice Harlan Fiske Stone is a conservative who turned liberal in the rarefied air of the Supreme Court. New Hampshire-born and Amherst-educated, he was a great teacher of law at Columbia until Calvin Coolidge called him to Washington to be Attorney General and clean up the Department of Justice after the Ohio Gang. In 1925 he was advanced to the Supreme Court where "Holmes, Brandeis & Stone dissenting" from conservative majority opinion became a familiar news tag.

Some hope also the liberals place on Associate Justice Owen Josephus Roberts, the baby of the Court, who is a mere 59. He was a corporation lawyer in Pennsylvania until President Coolidge put him in charge of the criminal prosecution of the Naval Oil Scandals. He sent Albert Bacon Fall to jail for a year, and made a great public name for himself, to boot. On the Supreme Court, to which President Hoover appointed him in 1930, he has been conservative--he voted with the majority on the Oklahoma Ice case--but he has also been New Dealish, voting with the liberals on the Minnesota Mortgage and New York Milk cases.

The last member of the Court, who should be the least significant in point of seniority, is far from it. In 1913 in Manhattan and The Bronx, the Fusion candidate for the Supreme Court of New York was an able young lawyer named Benjamin Nathan Cardozo. Early returns showed him running behind his ticket and he went to bed believing himself beaten. He awoke in the morning to find that: "My name led all the rest when the returns from The Bronx came in. Our good Italian citizens took my name for one of their own."

No Italian is Associate Justice Cardozo. By ancestry he is a Sephardic Jew, great-great nephew of Gershom Mendes Seixas, a Rabbi who took part in the inauguration of George Washington.

A month after his election to the State Supreme Court, the still higher State Court of Appeals asked and secured his appointment to sit with it to help clear a crowded calendar. He remained with that court until 1932, sitting after 1927 as its chief judge. A lifelong bachelor, he lived with his sister Ellen Ida until her death in 1929, gave his whole life to his profession. Diminutive, white-mopped Justice Cardozo is a scholar, an outstanding liberal, a humanitarian and an unusually modest man. The clarity and logic of his opinions make them among the most quoted of any in the U. S.

In 1932 President Hoover, having had difficulty in finding a successor to Justice Oliver Wendell Holmes, named Judge Cardozo to the Supreme Court at the suggestion of Senators Borah and Wagner.

Chief Justice Hughes dislikes dissenting opinions and does his best to bring his Associates into line with the majority. On the New York Court of Appeals Justice Cardozo had a record for the small number of dissenting opinions which his Court issued. After the Supreme Court has heard cases, the Justices discuss them in private before the Chief Justice assigns them to different members of the court to write opinions. Since, according to tradition, the Justices express their opinions at such gatherings in reverse order of seniority, Justice Cardozo speaks first. In that strategic position his scholarly gentleness, his lucidity and his unusual powers of analysis work toward the same unity of opinion that the authority of the Chief Justice aims at from the opposite end.

The assumption of the public that the Court's decisions depend almost wholly on the private political likes of the Justices is a gross exaggeration. As Justice Cardozo pointed out in an essay, the job of the courts is to apply the Constitution and the law in cases where they are obviously meant to apply. In other cases it may be necessary for the Court to search for the intent that was behind a law to fit a particular case. Then interpretation comes into play. It comes still more into prominence when a case arises which the law has not foreseen and about which the framers of the law had really no intention. In such cases the personal inclinations of the nine Justices assume vast importance.

In the course of his self-searching Justice Cardozo asked: "What is it that I do when I decide a case?...If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future?...I take judge-made law as one of the existing realities of life. There, before us is the brew. Not a judge on the bench but has had a hand in its making....In the field of constitutional law, the method of free decision has become, I think, the dominant one today. The great generalities of the Constitution have a content and a significance that vary from age to age. The method of free decision sees through the transitory particulars and reaches what is permanent behind them....The eccentricities of judges balance one another....Out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements....The tide rises and falls, but the sands of error crumble."

Two years ago Justice Cardozo asked, in a philosophical address, a question which, until his court answers it, keeps the New Deal uneasy: "What values shall we choose--those of today, or of tomorrow, or of a future that is close at hand, or of the unplumbed future, trackless as the sea?"

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