President Franklin Roosevelt knows that he is giving political opponents rich material for criticism in his dramatic move against, the Supreme Court, It is at once being said that he is attempting to pack that Court, to deprive it of its independence' of the Executive and opposition to his proposals has rapidly crystallized. No-one can. doubt that the President would not. deliberately invite such an attack, The powers which he secks have to come from Congress as the: representatives of the people and, huge though his majority is, President Roosevelt may expect a. severe struggle before he gets his way. He has on his side no Uttle weight of argument, but he has to meet ingrained' convietion fostered by long tradition. The Constitution to Amorleans the guarantee that they shall be ruled by laws and not by men, 'The Supreme Court commands respect as the supreme interpreter of the chief law. 'The President is making a knight's move, for he is not directly increasing' the personnel of the Court; he asks for powers to appoint new judges in certain contingencies and thus provides the explanation of his avoidance of the constitutional issue in his recent election campaign when, contrary to some originally-devised forecasts, he gave no'sign of an intention to move for change in the Constitution. Yet! it is significant that, for a precedent, the eritigs have to' go back to the critical days of 1869, just after the termination of the Civil War. Then an Act authorized the appointment, ofan additional judge of the Supreme Court and advantage was, taken of that power to make an appointment which solved the impasse created by a majority Judgment invalidating the Congress decision to declare -government paper legal tender for debts. The majority of five to three against the Executive in 1870 was converted into a favourable majority of five to four in 1871 and, in 1 although then a later Act of C gress was involved, the Court confirmed that reversal of its previous decision with only one dissentient voice. Conservatives were uneasy, the volte face of the highest court in the land, following on the appointment of two judges known to support the views of the original minority, was thought to "disclose weak point in the constitution of the tribune which," wrote Lord Bryce "may some day prove fatal to its usefulness."
The exceedingly critical situation in America will be the President's excuse. He may justly argue that itis even more critical than in those dificult days which followed the conclusion of the Civil War, The Constitution nowhere lays down how many justices there shall be, so the President's exercise of the power now invoked is not specific cally assailable. It must be remembered that, in dealing with the problems of recovery, the President is in need of sweeping powers, if the Government is to meet. the menace which has shown its hand in recent industrial disputes. Interpretation of the Constitution must depend on the personnel of the Supreme Court and, as in other countries, it would be idle to deny that, however upright and eminent the judges may be, their past social and political backgrounds are bound occasionally to affect their judgment on the wide social and economic matters coming before them. In Great Britain the classic example was the attitude of the Bench toward trade unions which under common law were illegal organizations but gradually assumed important and recognized functions in the country's political machinery. It was difficult to induce the judges to recognize this advance. "They could not, in the 30th century, ud a place for a jo union in their legal categories, This was partly due to their having had no experience of such a body and partly because the atmosphere in which they lived made them unfavourable to the claims which It put forward. So the Supreme Court of the United States refused for many years to admit the constitutionality of a legal minimum wage on the ground that it was a viola tion of liberty. of+contract. When political and social movements in a country are developing a dynamic. force under pressure of extraordinary conditions it is useful that the judicial check on executive action should be available and command public confidence. Danger. arises when the difference between practice, and academic judicial findings becomes so marked as to Incite organized action in defiance of the Jaw. It can hardly be pretended that this danger is not present in the United States at the moment, The "beef squads" of Seattle and San Francisco threaten the foundations of law and order; they are symbols and portents not to be Ignored. Unless the Government of. the United States can assert Its authority as represontative of the nation the now technique of—political-gahgsterdom—masquerading under the guise of trade unionism will destroy the founda tions of that very Uberty which the Supreme Court is charged to protect.
President Roosevelt is moved not merely by the desire to ensure the Court's recognition of new conditions but also by the conviction that the machinery of the Court is too slow in operation to give efficient support to the legal administrative measures required to fulfil the pur~ poses of recovery. It may come as shock to observe that the Court has to decline to hear 87 per cent, Of the cases presented to it by private litigants, Nor does the Government seem to lack a grievance in the apparently defective Liaison between the officers of the Court and its oivn departmental organization, Tu considering the delicacy of any action which appears to flout the fundamental esteem appertaining to a judicial tribunal, it should not be forgotten that Judges in exercising their function are enacting into law a system of social philosophy. They must therefore be judged by the social philosophy which they enact, Mr. H. J, Laskt puts the problem thus:
Is, more dangerous than the authority committed to them to suppress views or ox-Perlments they happen to. dislike, That Is always, ultimately, to bring the Judicial office into controversy, and when that occurs, It is always 4 sign of malaise In the life of the community, When the judge In articular, has to Interpret a. view of law taken by an elected body, he must always approach It upon the basis that he la not less likely than members {o be mistaken, English critics who appreciate the difference between present day judicial views on the problem of Dunishment and the attitude of Judges in the 18th or even 19th Century will realize that when currents of thought are moving quickly it Is not always possible for the Court to maintain its equipoise in Approach to issues involving social philosophy, rather than an abstract principle of law. In recent year parliamentary decisions in Great Britain have had important influence on the judiciary's findings in regard to the laws of property, to say nothing of those questions which affect relations between employer and employed. President Roosevelt's knight's move is clearly inspired by considerations of that kind as his Teference to the blurring of old glasses shows, Those who fear the Anarehieal tendencies displayed in resent efforts by American Labour to enforce its" grievances—and, perhaps, assert its strength—must Fealize that the Government cannot successfully preserve constitu anal integrity, in the present exceptional circumstances, unless It fully equipped with modern instru ments for effecting modern reforms,
Text read from the printed page and cleaned; old type leaves the occasional error.