"Quiet Crisis"

A notable feature of the Supreme Court debate is that articulate Franklin Roosevelt, having alienated a considerable portion of his liberal following, is for almost the first time confronted by a formidably articulate opposition. Among U. S. journalists, no more facile penman exists than The New Yorker's famed E. (for Elwyn) B. (for Brooks) White. Grave, smallish Writer White, whose devotees consider him the nation's ablest humorist, is generally content to muse on minor human foibles. In semi-serious vein he perennially campaigns against arsenic apple spray. He is a friend--but not, as reported by bumbling Alexander Woollcott, the founder--of the Enemies of Modern Aviation, Inc. Last week, however, connoisseurs recognized an unusually earnest thrust from the White rapier in a New Yorker paragraph which gave the President and his Court plan a pinking far more effective than the bludgeonings of his customarily solemn critics. Full text:

"The President, in his Victory Dinner speech, said the shouting against him had broken forth again, as it did in the early days of the New Deal, 'and from substantially the same elements of opposition.' This is balderdash. The opposition to his plan to bring the judiciary into line is from people who care not about their property, their profits, and their old Lincoln limousines, but who care about their freedom from authority--which was what started the first big doings in this country and may well start the last. We ourselves applauded Mr. Roosevelt's program four years ago, but we decline to follow a leader, however high-minded, who proposes to take charge of affairs because he thinks he knows all the answers. Mr. Roosevelt is not ambitious personally, but he has turned into an Eagle Scout whose passion for doing the country a good turn every day has at last got out of hand. His 'Now' remarks were a giveaway-- the utterances of a petulant saviour. America doesn't need to be saved today; it can wait till tomorrow. Meanwhile, Mister, we'll sleep on it."

As he had in his Victory Dinner oration, President Roosevelt last week keyed up listeners to his tenth ''fireside chat" with sonorous talk of a crisis. "Recovery," he declared, "is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a year or two. ... It is a quiet crisis. There are no lines of depositors out-side closed banks. But to the far-sighted it is far-reaching in its possibilities of injury to America. I want to talk with you very simply about the need for present action in this crisis. . . ." Human Being. With this brief warmup, the President launched into his Court reform thesis. Without the rancor of the Victory Dinner speech, the calm voice pronounced as direct a denunciation of Supreme Court personnel as ever issued from a U. S. President. "Our difficulty with the Court today,'' it keynoted, "rises not from the Court as an institution but from human beings within it. But we cannot yield our Constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present." Super-Legislature. Quoting a declaration by George Washington's nephew, Bushrod Washington, longtime (1798-1829) Associate Justice of the Supreme Court, that the Court should nullify acts of Congress only when their unconstitutionality is established beyond all reasonable doubt, the President asserted: "In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body but as a policy-making body. . . . [It] has improperly set itself up as a third house of Congress--a superlegislature, as one of the justices has called it. ... We have, therefore, reached a point as a nation where we must act to save the Constitution from the Court and the Court from itself." Only If ... To a widespread charge that he has broken his 1936 platform promise to seek a "clarifying amendment" if New Deal problems could not be "effectively solved within the Constitution." the President replied: "We said we would seek an amendment only if every other possible means by legislation were to fail."

Spineless Puppets. "What do they mean by the words 'packing the Supreme Court'.... If by that phrase 'packing the Court' it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer--that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm that kind of appointees to the-Supreme Court.

"But, if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the Court who understand those modern conditions--that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy . . . then I say that I and with me the vast majority of the American people favor doing just that thing--now." Strange Bedfellows. Boldly the President amended his Victory Dinner charge that his opponents now and last summer were one & the same, conceded that some liberals honestly differed with him about a Constitutional amendment v. his plan.

"To them I say," said he, "we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. Look at these strange bedfellows of yours. When before have you found them really at your side in your fights for progress?" You Who Know Me. Having put his Supreme Court indictment on as personal a basis as if he had called off the names Sutherland, Butler. McReynolds and Van Devanter. Franklin Roosevelt rounded off his polemic consistently by pleading for confidence in his person.

"This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear to every American. My record as Governor and as President proves my devotion to those liberties. You who know me can have no fear that I would tolerate the destruction by any branch of Government of any part of our heritage of freedom. . . . You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed."

Idle Dream, Having soothed alarmists by radio, the President next day offered further reassurance by packing his bags for his customary Warm Springs trip as if no crisis were present or in prospect. His new strategy advanced when Attorney General Homer Stille Cummings took the stand as first witness at Senate Judiciary Committee hearings on the Court plan.

With a geniality leaning toward flippancy, suave Mr. Cummings read an amiable 5,000-word paraphrase of standard arguments for the plan, submitted himself to some surprisingly mild questioning by the 18-man committee.

"Do you recognize," demanded Wyoming's O'Mahoney, "that this does not afford a permanent remedy for the situation of which you complain?" "There is nothing permanent in this world, Senator," smiled benign Homer Cummings. "Those who dream of permanency are dreaming an idle dream." Snapping Silenced. As the hearings proceeded, Senator Norris began absently snapping a rubber band against his scratch pad, causing courtly Chairman Ashurst to rise and boom: "Will Senators and spectators kindly stop moving about the hall, shifting, ruffling papers--and snapping rubber bands!" There was no shifting when Assistant Attorney General Robert H. Jackson appeared as the President's second advocate. Though that able, 45-year-old lawyer is frequently mentioned as a likely Supreme Court appointee if the President has his way, there was no trace of special pleading in his closely-reasoned, factual argument. Progressing with a clarity and objectivity which won him the Committee's rapt attention and grateful congratulations, honest "Bob" Jackson made out a case for the President's plan which earned the praise of its bitterest foes, delighted its friends as perhaps the most persuasive yet presented.

His points:

Since the writers of the Constitution deliberately left Congress free to alter the size of the Supreme Court, they plainly intended Congress to be responsible for the adequacy of the Court's personnel "both with respect to number and to neutrality of attitude." Six times has Congress used its power for that purpose.

In the 71 years between adoption of the Constitution and the Civil War, the Court nullified only two acts of Congress as unconstitutional. In the 72 years from the beginning of the Civil War to the end of the Court's last Hoover Administration term, it overruled Congress in some 60 cases. And in the three years since the beginning of its first Roosevelt Administration term, it has undone Congress' work twelve times.

"To offset the effect of the judicial attitude reflected in recent decisions it would be necessary to amend not only the commerce clause and the due process clause, but the equal protection clause, the privilege and immunities clause, the Tenth Amendment, the bankruptcy power, and the taxing and spending power. Each one of these clauses has, during the past two years, been so unwarrantably construed as to call forth indignant dissents from the liberal minority of the Court.

"Judges who resort to a tortured construction of the Constitution may torture an amendment. You cannot amend a state of mind. . . ."

"A majority of the justices have made it apparent that the great objectives of this Administration and this Congress offend their deep convictions. . . . Prediction of 'impending moral chaos.' grief over the fear that 'the Constitution is gone,' characterization of the Securities & Exchange Commission as a 'star chamber,' accusation that the Congress and the Executive have coerced farmers, taken freedom of contract away from working women and despoiled the states, indicate an implacable, although unquestionably sincere, opposition to the use of national power to accomplish the policies so overwhelmingly endorsed by the voters."

Other Presidential advocates were to have the Committee's ears this week, with innings for the plan's foes scheduled to begin before the Judiciary Committee next week. Meantime the steam of debate throughout the land was rising so thick and hot that Utah's Democratic Senator King, an anti-planner, this week called for a Senate investigation of charges that the large radio chains, under Administration pressure, were discriminating against the clamorous Presidential opposition. Columbia promptly retorted that it had broadcast exactly 17 speeches on each side of the controversy (though it failed to compare the size of the hookups), that such notables as Chief Justice Hughes, Alfred M. Landon and Alfred E. Smith had declined its invitations to take the air against the President's proposal. Would-be peacemakers continued to suggest compromises, Senator Pittman proposing a Constitutional amendment to set Court membership at a permanent and unconditional 15, thereby avoiding retirement pressure on present Justices. But the President's opponents by now had their dander up, were settled down to a finish fight. Snapped Senator Vandenberg of the Pittman proposal: "It might have been a good compromise once, but the President's last speech made all compromise impossible."

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