Bigger Right, Smaller Left

Not every Supreme Court Justice is born a little liberal or a little conservative. Last week Justice Owen Josephus Roberts proved that he was born on the borderline. Having voted on the gold clause cases with the Supreme Court Liberals (TIME, Feb. 25), last week he voted with the Conservatives. Result: a 5-to-4 decision declaring the Railway Pension Law, first "social security" act of the New Deal, unconstitutional.

The railway pension act, passed ten months ago, required railroads to pension their retiring employes. Franklin Roosevelt, who made it law, was its first critic, remarking as he signed it that it was crudely drawn. Second critics were railroads who contested it in court. Third critic was a lower court which held it unconstitutional. When five Supreme Court Justices became its final critics, few people were surprised.

Justice Roberts not only voted against it but wrote the majority opinion. He ruled that the act would have taken property from the railroads without due process of law because it arbitrarily pooled the pension liabilities of different roads. More important, he ruled that pensioning railway employes had nothing to do with regulating interstate commerce. Said he: "It is an attempt for social ends to impose by sheer fiat non-contractual incidents upon the relation of employer and employe, not as a rule or regulation of commerce and transportation between the states but as a means of assuring a particular class of employes against old age dependency."

Chief Justice Hughes, voting with and speaking for the minority, declared: "I am not persuaded. . . . The power committed to Congress to govern interstate commerce does not require that its government should be wise, much less that it should be perfect. The power implies a broad discretion and thus permits a wide range even of mistakes."

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