By Retirement

In the effort to liberalize the Supreme Court, Franklin Delano Roosevelt last year split the Democratic Party with the bitterest political fight of the century. That the fight was a blunder became apparent last summer when the President lost it. That it was also totally unnecessary became apparent last week when Supreme Court Justice George Sutherland called reporters into his office to show them a letter he had just sent the President. The letter: ". . . Being eligible for retirement under the Sumners Act ... I hereby retire from regular active service on the bench, this retirement to be effective . . . the 18th day of January, 1938."

The Sumners Act--passed with no furor at all in the early stages of the Court fight last winter--gave Supreme Court Justices who were over 70 the right to retire instead of resigning, with full pay of $20.000 a year guaranteed against any possible reduction by Congress. Justice Willis Van Devanter retired last May. Justice Sutherland's letter consequently reduced the rock-ribbed conservative element on the bench to two (Justices Butler and McReynolds), removed the potential balance of power from the middle-of-the-road conservatives (Chief Justice Hughes and Justice Roberts), gave the liberal wing (Justices Brandeis, Cardozo,-Stone,* Black and, presumably, Justice Sutherland's successor), a majority as effective as any the President could have hoped for.

Born in England, reared in Utah which sent him to the Senate in 1905 and 1911, slim, grey-bearded old Justice Sutherland voted against the New Deal in twelve important Court decisions before he wrote last fortnight a unanimous opinion sustaining the Government's right to finance power plants with PWA funds. In retirement, he will live in Washington, stand ready to serve occasionally in crowded lower courts--like Justice Van Devanter (see p. 18). Since all eight remaining Justices, except Minnesota's Butler, come from East and South, it seemed a virtual certainty that Justice Sutherland's successor onetime (1925-33) Senator from New Mexico, but every political wiseacre had his tip on the probable choice. The House Judiciary Committee did not neglect to send the President a resolution asking him to appoint its chairman--Texas' Hatton W. Sumners.

Whom the President would appoint no one, not even Franklin Roosevelt, knew for certain, but one thing was certain: the Senate would investigate and consider the qualifications of his nominee ten times more carefully than it examined those of Hugo LaFayette Black.

-Ill of shingles for the past month, Justice Cardozo last week suffered several severe heart attacks, was later reported improving slowly at his Washington home.

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