Old Men, New Battles

"The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. . . ."

At these words, spoken this week by Court Crier Thomas Waggaman, about 250 reporters, lawyers and spectators in the resplendent marble-pillared courtroom of the Supreme Court in Washington, D. C. rose to their feet. At the same instant, the nine Justices who had been awaiting the cue for their entrance, filed through three apertures in the white curtains at the end of the room, took their places behind the 30-ft. mahogany bench with celerity belying their years (51 to 81). Almost before the crowd had seated itself a summary of the day's first decision was being read.

Reader was Mr. Justice Hugo LaFayette Black. The case involved the right of the Federal Trade Commission to prevent Standard Education Society from advertising, as a free gift for subscribers to its $69.50 loose-leaf supplement service, an encyclopedia which the F. T. C. had found normally sold at $69.50 with no charge for the supplement. In his opinion, in which all of his eight colleagues concurred, Justice Black ruled for the Commission, gave an outline of his reasoning:

"Laws are made to protect the trusting as well as the suspicious. The best element of business has long decided that honesty should govern competitive enterprises and the rule of caveat emptor should not be relied upon to reward fraud and deception."

In the judicial calm of the Supreme Court, all this produced this week what in less august surroundings would have been a buzz of excitement. The opinion was the first of the Court's 1937-38 term. It also was the first one written by the Court's newest member and an exception to the procedure whereby new Justices serve an initial period before being called upon to speak for their colleagues. When Justice Black had finished, the Court proceeded to the rest of the day's business. By a 5-to-4 majority--Justices Brandeis, Stone, Cardozo, Black strenuously dis-senting--it held that a $10,000 gift made to an employe for "valuable and loyal service" in 1931 was not taxable as income. Among eleven other decisions handed down, the most important per se was a preliminary victory for the National Labor Relations Board in its dispute with Pennsylvania Greyhound Lines Inc. The Court announced that it would review the case, which may or may not turn out to have a profound effect on the legal standing of company unions.

Transition-- Year before last the Court's nine old men were bathed in historic limelight when they waded into the New Deal's first crop of economic measures, invalidating NRA and AAA and upholding the Government's right to cancel the gold clauses in all contracts. Last term the nine were the centre of a political death struggle unequaled since the Civil War, brought about by Franklin Roosevelt's desire to insure the constitutionality of his future legislative program by adding sympathetic Justices to the bench. The excitement of the current court term will be different from that of the two previous ones, but no less noteworthy. Although Mr. Roosevelt's packing plan failed, this term finds the Court philosophically and politically realigned and slanted in a new direction. And the important cases likely to come to judgment this winter are largely social in implication. Concerned chiefly with the rights of newly-resurgent Labor and the right of the Government to enter the public utilities field, they include:

P:Two suits brought by Southern power companies (Alabama Power Co. v. Ickes, Duke Power Co. & Southern Public Utilities Co. v. Greenwood County) which will determine whether PWA-financed projects supplying electricity may compete with privately owned companies.

P:American Federation of Full-Fashioned Hosiery Workers' appeal from a Circuit Court of Appeals injunction which ended an Apex Hosiery workers' sit-down strike in Philadelphia last June (TIME, July 5). If the lower court decision is upheld, sit-down strikes in industries in interstate commerce can hereafter be stopped by injunctions.

P:Two cases, involving Newport News Dry Dock & Shipbuilding Co. and Bethlehem Shipbuilding Corp., which will determine to what extent the National Labor Relations Board has the ability to decide what labor disputes it has a right to settle.

P:Several "gold clause" cases in which holders of Liberty bonds, payable in "gold coin" but called up for redemption in "legal tender," contend that the redemption call was invalid and that the U. S. still owes them interest on the bonds.

Had these cases come before the Court in 1936, they would have been judged by four rock-ribbed conservatives, three equally dependable liberals--with Chief Justice Hughes and Justice Roberts unpredictably on the fence. Currently the known balance is 4-to-3 on the other side, for while Mr. Roosevelt was not able to place an additional member in the court for each one over 70--the total would have been six--nevertheless, when the smoke of battle cleared away, Mr. Roosevelt's formal defeat had been accompanied by the retirement of arch-conservative Mr. Justice Van Devanter. And no matter how much his former Ku Klux Klan membership belies any innate liberalism, Mr. Justice Black, who was given the vacant chair, is a bona fide New Dealer and may be expected to vote with the liberal wing, as he did this week. Thus in the 1937-38 term, the liberals will have, if not a working majority, at least the Court's strongest minority, and, paradoxically for Mr. Roosevelt's conception that a Justice's conservatism varies directly with his years, the leadership of the Court's controlling sentiment falls to the Court's oldest member. After 21 years on the losing side, Louis Dembitz Brandeis (pronounced: Brand-ice), the Court's senior liberal, emerges at the political forefront of a body which as a superb legal technician he has distinguished for two decades with his deep scholarship and juridical goodwill.

"People's Lawyer." When Woodrow Wilson sent Louis Dembitz Brandeis' name to the Senate as a nominee for the Supreme Court in 1916, it caused an uproar over his confirmation which made last summer's disturbance over Hugo Black look like a pillow fight. The Senate's Judiciary Committee wrangled over the Brandeis nomination for four months. From six onetime presidents of the American Bar Association the Committee got a petition stating succinctly that he was "not a fit person to be a member of the Supreme Court." One of the bar association presidents who signed the petition was also a onetime President of the U. S.-- William Howard Taft. When Brandeis was finally confirmed and when William Howard Taft followed him to the bench as Chief Justice in 1921, observers were amazed to find that the two were friends. One night, when they had bumped into each other on the street in Washington, Taft said: "Mr. Brandeis, I once did you a grave injustice. I am sorry." Brandeis answered: "Thank you, Mr. Taft," and shook hands.

Ground on which Brandeis' nomination was challenged was a belief that his legal and economic philosophy was dangerously radical. The grounds for the belief lay in no political activities, but in the record of 37 years of practice which had made Louis Brandeis a national figure as Boston's "People's Lawyer." The somewhat prodigious son of a prosperous Louisville grain merchant who had emigrated from Prague in 1848, Louis Brandeis went to Harvard Law School in 1875, in time to hear, at the house of a professor, a paper on education, read in a quavering old man's voice, by Ralph Waldo Emerson. After his graduation, the firm he started with his Classmate Sam Warren prospered brilliantly. By the time he was married at 34 to Alice Goldmark, whose father, a political exile from Vienna, had emigrated in 1848, Louis Brandeis was both mature and financially secure enough to manifest the social consciousness that has since been the dominant theme of his thoughts and deeds.

In 1896, Lawyer Brandeis forced a Boston traction company to accept a 20-year franchise on the Boston subway which it hoped to hold for 50 years. From 1907 to 1913, as counsel for the people, he opposed the New Haven monopoly of New England transportation. As unpaid counsel for a policy holders' committee he learned enough about the Equitable Life Assurance Society in 1905 to persuade the Massachusetts Legislature to make provisions for cheap insurance issued through savings banks. The Brandeis insurance plan, started in one bank, now includes 24 and more than 100 agencies in other savings banks, trust companies and national banks, handles a total of $140,000,000.

Supreme Court convention places the most recent appointee to the bench at the chair farthest to the left of the Chief Justice, who sits in the middle. Since 1916, Justice Brandeis' old bronze reading lamp has gradually moved closer to the centre. Now the oldest Justice on the Court, he sits on the left hand of snowy-bearded Charles Evans Hughes, who Brandeis privately tells friends is the best Chief Justice he has known. Since 1916, nothing closer to a further questioning of Justice Brandeis' fitness as a member of the Court has occurred than the President's suggestion last year that all Justices over 70 had outlived their usefulness. The suggestion made Louis Brandeis angry enough to give his approval, along with Conservative Willis Van Devanter, when the Chief Justice condemned the plan as roundly as judicial decorum would permit in a statement to the effect that increasing the personnel of the Court would not increase its efficiency.

Philosophical Locations-- In the 1920s, Brandeis, his closest friend Oliver Wendell Holmes and Harlan Fiske Stone formed a minority whose famed dissenting opinions became a Court tradition. When the majority had ruled against the right of a stonecutters' union to call a strike against a plaintiff's non-union products, Justice Brandeis, in 1927, summed up what is still an important part of his views on the Sherman Law. Pointing out that the law permitted Capital to combine 50% of the steel industry in one corporation, most of the shoe machinery industry in another, he wrote: "It would, indeed, be strange if Congress had by the same Act willed to deny to members of a small craft of workingmen the right to cooperate in simply refraining from work, when that course was the only means of self-protection against a combination of militant and powerful employers. . . ."

When Justice Benjamin Nathan Cardozo replaced Justice Holmes in 1932, the change did nothing to alter the Court's balance and it was a minority again which defended Florida's right to impose a system of graduated taxes on chain stores. Brandeis' opinion, in this case too, was the statement of a fundamental tenet. "There is a widespread belief that . . . only by releasing from corporate control the faculties of the unknown many . . . can confidence in our future be restored. ... If the citizens of Florida share that belief, I know of nothing in the Federal Constitution which precludes the State from endeavoring to give it effect. . . . To that extent, the citizens of each State are still masters of their destiny."

Arbitrary division of the Supreme Court into liberals and conservatives is a delicate and--since Justices do not always live up to their labels--not always a profitable task. Nonetheless, the last five years have tended to crystallize differences of political thought as clearly on the Supreme Court as elsewhere in the U. S. and in the light of their decisions the three conservatives on the bench at least constitute a cohesive minority united by their profound faith in the rights of Capital. They are in the order of their appointment: James Clark McReynolds (1914), Woodrow Wilson's onetime Attorney-General, a peppery oldster of 75 who mortally fears tobacco smoke; George Sutherland (1922), a onetime (1905-17) Utah Senator, who was one of the four Justices Warren Harding appointed in two years; and Pierce Butler (1922), the bench's only Catholic, a onetime railroad corporation lawyer.

Chief Justice Hughes and Associate Justice Owen Roberts, whose historic change of heart as exhibited by his decision on the Wagner Labor Act last spring stamped him as at least temporarily a liberal, belong to neither of the Court's well defined sides. Both are closer to the liberals than to their hard-shelled conservative colleagues with whom they were aligned in this week's employe bonus case. Among the Court's current liberal majority, the shadings of viewpoint are subtler. A single opinion, even when it is as eloquent as the one he read this week, by no means reveals Associate Justice Hugo Black's exact philosophical locality. Harlan Fiske Stone, onetime dean of Columbia University Law School and Attorney General under Calvin Coolidge, once reportedly slated (by President Hoover) for the Chief Justiceship that Charles Evans Hughes surprisingly accepted in 1930, was raised to the bench in 1925. His liberalism, mostly acquired thereafter, contains more tolerance than militancy. Humanitarian Benjamin Nathan Cardozo's liberalism comes from the heart.

In Brandeis' early battles in Boston, one central conviction of his that became increasingly clear was what his appraising critics have since defined as an almost pathological "fear of bigness." Actually Brandeis' fear of bigness is a rooted but reasonable distrust in human infallibility. Brandeis objected to financial pyramids, huge monopolies and interminable leases not so much because of size as because he felt and feels that human administrative capacity has grave limits. In 1915, appearing before a Congressional committee with a new bill aimed at monopoly, he quoted a German proverb: "Care is taken that the trees do not scrape the skies." Hundreds of times and in hundreds of ways he has expressed the same theme-- a theme which marks the enormous difference between his liberal thinking and that, for instance, which is exemplified by the New Deal.

In Justice Brandeis' saying about the height of trees there is no provision for a limit on how far trees should sink their roots into the ground or how wide they should spread. If he has never before exerted the direct influence upon U. S. life that he may be expected to exert henceforth, a case could be made to prove that Louis Dembitz Brandeis has indirectly influenced the trend of U. S. political thought and action as much as the most influential of his colleagues.

As they used to go to Mr. Justice Holmes, Harvard Law's top ranking graduates now spend a year with Mr. Brandeis as his secretaries. And through his close friend, Felix Frankfurter, Mr. Brandeis exerts a powerful humanizing influence in the nation's greatest law school. In Washington he and Mrs. Brandeis live in a comfortable, old-fashioned apartment at 2205 California Street, where the Justice, who never goes to his office in the Supreme

Court Building, does his work. The apartment, like the Cape Cod cottage where the Justice still spends his summers, has been a meeting place at one time or another for a generous quorum of most of the ablest younger legal minds in the U. S. There Justice Brandeis will this week celebrate his 81st birthday in the assurance that the next years in his grand-scale life may still be the greatest.

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