The Big Debate

If the five conservative Justices of the U. S. Supreme Court had deliberately set out to ''humanize" themselves as a means of frustrating President Roosevelt's plans to reform the Court, they could not have achieved a livelier photographic record of their extra-legal activities last week. There was the morning when photographers waited in the lobby of the apartment house where Justice Van Devanter lives. When Mr. Van Devanter came down accompanied by his two elderly sisters, the photographers cut loose. Incensed because they had not asked his permission (which on other occasions he has frequently given) the Justice held his hat before his face, rushed one cameraman and then gripped him by the arm while delivering a lecture on the discourtesy of unannounced snapshooting. He pushed another of the photographers out the door. There was the evening when Alumnus Charles Evans Hughes, '81, attended a Brown University alumni dinner and was caught by the camera beaming happily over a plate of oysters, the twinkle in his eye not betraying the fact that before the week was out he was to be the opposition's first big witness before the Senate Judiciary Committee. And there was another evening when Justice McReynolds attended, as he usually does, the annual banquet of his fraternity, Phi Delta Theta (see cuts, p. 15).

Mr. McReynolds' photographic act was the liveliest of all because he was not only seen but heard. At such dinners he usually makes an extemporaneous speech, and so he did last week. The Justice gave a general discourse on good citizenship and the problems of government. In the course of it he referred to the fact that some attorneys complain, when they lose a case, that the Court has been unfair. Said he while an Associated Press Phi Delta Theta took notes:

''But the evidence of good sportsmanship is that a man who has had a chance to present a fair case to a fair tribunal must be a good sport and accept the outcome. Courts only decide things that are submitted to them, and only things that are in dispute come before them.

"Thousands and thousands of things come before them that are settled to the general satisfaction. If things come that are not settled to the satisfaction of all, put yourself in the place of the Court and see if you could have done better.

"I should like to be optimistic, I should like to tell you that the situation is rosy. I can't. But I like to believe in the courage of the American people, and I hope they may make a solution of which they may be proud."

Witnesses Pro, Meanwhile the supporters of the Court plan marshaled their witnesses before the Senate Judiciary Committee, succeeded in assembling a long list of legal educators like Justin Miller, onetime Dean of Duke University Law School and now member of the Board of Tax Appeals, Leon Green of Northwestern, Thomas Konop of Notre

Dame, William Draper Lewis of the American Law Institute and former Dean of the University of Pennsylvania Law School, Edward S. Corwin of Princeton.

Opponents did their best to make it hot for the law professors. Leon Green was forced to admit that he had discussed his arguments beforehand with lawyers in the Attorney General's office, that friends had advanced his name for nomination as a judge of the circuit court. Professor Corwin blushingly confessed under pressure that he had said only last year that there were serious objections to "packing" the Court. Justin Miller received his comeuppance while he was propounding a theory that the age of Justices of the Supreme Court was proportional to the number of laws they found unconstitutional. One of two women spectators sitting together passed up a note to Senator Van Nuys.

Said the Senator: "I have received a note from a member of the audience.

Would you mind answering it? 'Could you tell us the average age of world dictators when they come into power?' " Said Mr. Miller: "No, I could not." Everyone turned to stare at the two women. One of them was easily recognized as Alice Longworth, but she was not the writer of the note. Columnist Dorothy Thompson, wife of Sinclair (It Can't Happen Here) Lewis, was. One of the witnesses was Ferdinand Pecora, Justice of New York's Supreme Court. Familiar with Senate investigationl from his Job as chief inquisitor in the banking investigation of 1933-34 he easily made headlines by broaching' an argument which, if sit-down-strikes reach the proportions of a national crisis may become one of the big guns behind the drive for revising the Court. He accused investment bankers of a "sitdown" against the Securities Act of 1933 utilities men against the Utility Holding Company Act, employers against the Wagner Labor Relations Act and demanded: "How can you expect the working men and women to be religiously reverent of the letter of the law when the mighty and powerful who want the rest of the community to consider them models act this way toward the law?"

Voice of the Court First witness against the Court proposal was Senator Burton K. Wheeler who favors gaining liberal ends by a Constitutional Amendment. Of Franklin Roosevelt's short cut he declared: "If I wanted to destroy the President I could think of no better way than to pass this bill." But Senator Wheeler's own ideas were dwarfed in news by his presenting the official views of the Court, a letter from Chief Justice Hughes answering specific questions put by Mr. Wheeler. True to Supreme Court tradition the Chief Justice confined his discussion to questions of Court efficiency, twice repeated a refusal to deal with the political issue at stake. The Hughes report asserted that:

1) "The Supreme Court is fully abreast of its' work" -- it has heard arguments this month in some cases on which appeal was 2)granted For only the six four terms weeks from earlier. 1930 to 1935, the Supreme Court has had from 1,023 to 1,132 cases on its docket each term, had left over at term's end from 102 to 139.

3) Under the Act of 1925 only certain cases can be appealed to the Supreme Court as a matter of right.

4) Other appeals are granted only in the discretion of the Court. "Hosts of litigants will take appeals so long as there is a tribunal accessible. . . . When the dissatisfied party has been accorded an appeal to the Circuit Court of Appeals, the litigants so far as mere private interests are concerned have had their day in court. If further review is to be had by the Supreme Court it must be because of the public interest in the questions involved."

5) The rules of the Court define such questions of "public interest"--conflicting decisions of lower courts, decisions of general importance on the Constitution or on significant points of law that should be cleared up by the Supreme Court. Appeals are granted if any four Justices (and sometimes only two or three) think they should be heard.

6) Although the documents to consider on applications for appeal are often voluminous, experienced Justices are not overworked in doing the job. About 60% of the appeals received are "wholly with out merit and should never have been made," about 20% "have a fair degree of plausibility but fail to survive critical examination." The remaining 20% or less "show substantial grounds and are granted. ... If any error is made in dealing with these applications it is on the side of liberality."

7) "An increase in the number of Justices of the Supreme Court apart from any question of policy, which I do not discuss, would not promote the efficiency of the Court. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of Justices is thought to be large enough so far as the prompt, adequate and efficient conduct of the work of the Court is concerned. As I have said, I do not speak of any other considerations in view of the appropriate attitude of the Court in relation to questions of policy."

Cutting very close to a "question of policy," the Chief Justice of the U. S. sprang a conclusion of great interest to those who have been wondering how the Court's "liberal" members feel about Court expansion: "On account of the shortness of time I have not been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the Justices. I should say, however, that I have been able to consult with Mr. Justice Van Devanter and Mr. Justice Brandeis, and I am at liberty to say that the statement is approved by them."

Voice of the Ex-Court. The only ex-member of the Supreme Court still alive is John Hessin Clarke who resigned in 1922. Now 79, and an ardent Roosevelt fan, ex-Justice Clarke, on the night Chief Justice Hughes's letter was made public, delivered a radio address, arguing that the President's Court plan was entirely Constitutional. Said he: "... I have concluded it to be ... my duty as a citizen, to publicly state . . . that such an act [The Plan] would plainly be within the powers granted to the Congress and therefore clearly Constitutional."

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