AMERICAN SUPREME COURT

Dominion, Volume 31, Issue 2, 28 September 1937, Page 6

AMERICAN SUPREME COURT

Roosevelt’s Intentions FIRST MAJOR SETBACK Viscount Bryce liked Americans and admired their institutions. But he probably did not concur entirely with his friend Gladstone when Gladstone said: “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man. It has had a century of trial, under the pressure of exigencies caused by an expansion unexampled in point of rapidity and range, and its exemption from formal change, though not entire, has certainly proved the sagacity of the constructors, and the stubborn strength of the fabric.” Bryce’s acute legal mind has detected a flaw, which he pointed out in his “American Commonwealth,” said the New York correspondent of the “Observer” recently.

“Suppose,” he wrote, “a Congress and President: bent on doing something which the Supreme Court deems contrary to the Constitution. The court, on the hearing of the case, unanimously declares the statute to be null, as being beyond the powers of Congress. Congress forthwith passes and the President signs another statute more than doubling the number of justices. The President appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms the appointments. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones; the statute is held valid; the security provided for the protection of the Constitution is gone like a morning mist.” This Bryce hypothesis of fifty years ago has been translated to-day into a living Constitutional issue such as the

country has not faced since the one of States’ Right which brought on the Civil War. The Senate’s debate promised to be historic when it was interrupted by the death of Senator Robinson, the Democrat leader. Passions ran so high, not only in Congress but throughout the country, that on the eve of Senator Robinson’s death Mr. Sumners, the Democrat chairman of the Judiciary Committee of the House of Representatives, had said in a startling speech that the court issue was' endangering the unity of the nation, and had demanded the withdrawal of the Compromise Supreme Court Bill. This open defiance from a Democrat who said he would kill the Bill in his committee whatever the Senators did, caused a sensation. The Original Bill. It was last February that President Roosevelt submitted the original Bill to reform the Supreme Court. He asked for the power to appoint an additional justice where any member refused to resign upon reaching the age of 70. He would have added six justices to bring the number tin to 15. The Senate’s Judiciary Committee reported unfavourably on this measure, saying: “We recommend the rejection of this Bill as a needless, futile and utterly dangerous abandonment of constitutional principle.” The President was beaten on this original Bill, and his supporters knew it so well that they did not bother either to submit a minority report or to force a vote in the Senate. Instead, at Mr. Roosevelt’s urging and against I zheir own wishes, they drafted the com-, promise which provides for a court of nine members, as at present, but gives to the President the right to appoint one justice a year where any member fails to retire upon reaching the age of 75. At the present time five members of the court are beyond that age, and thus Mr. Roosevelt would be assured of four appointments during this Administration.

A knowledge of American history and the American Constitution is necessary if one would understand why such an issue cuts so deeply. This year marks the one hundredth and fiftieth anniversary of the writing of the Con-

stitution. It was a compact made by 13 sovereign States in which they yielded certain specified powers to a Central Government so that order might be brought out of a political and economic chaos which threatened to destroy them. We would have a parallel today if, for example, the nations of the British Commonwealth should in writing give to some super-legislature of their own selection authority over coinage, tariffs, defence, and other general legislation. The framers of the American Constitution. above everything else, aimed to set up protectives against absolutism. Therefore they formulated a system of checks and balances, a three-fold Government embracing Executive. Legislative and Judicial departments, each distinct and supreme in its own specified field and each to prevent encroachments by the other upon the rights of the States or the individual.

“Our judiciary,” wrote Woodrow Wilson, “is the balance-wheel of our entire system; it is meant to establish that nice adjustment between individual rights and governmental powers which constitutes political liberty.” Like Bryce before him, Wilson pointed out the dangei- that Congress and the Executive might manipulate the Supreme Court to suit their own purposes by adding to the number of justices. A Major Setback. The Opposition has made out a clear case that this Bill violates the spirit df the Constitution, and opens the way for a dictatorship, benevolent or otherwise. There was no suggestion that Mr. Roosevelt aspires to be a dictator. In fact, the leaders of the Opposition, who are Senators of his own party, repeatedly stated that they attributed to him no such designs, but they asked what guarantees the country had against the Presidents who will succeed him. Before Mr. Sumner’s speech and before Senator Robinson’s death. President Roosevelt seemed to ha- e a margin of two or three votes out of the Senate’s total of 96, but immediately following these two events half a dozen uncommitted senators informed ibe President that they would vote to kill the measure by sending it back to a hostile Senate committee; and Mr. Lehman, Governor of New York, hitherto

a close personal and political friend of Roosevelt’s, wrote to Senator Wagner urging him to vote against the measure. The cleavage in the Democrat Party became further marked after a vote in the party caucus on the election of a leader of the party in the Senate in succession to Senator Robinson. The nation now awaits Roosevelt’s reaction to the first major setback of his Presidency. The question is whether he will pull in harness with the conservative Democrates or, breaking away, veer sharply to the Left.