Second Stage

Few antipathies in U. S. politics have been so significant as that between the present U. S. Secretary of Agriculture, who looks homespun in a marble office, and the present Supreme Court of the U. S., whose Chief Justice would look Jovian in a rumble seat. They tangled from the beginning of the Great Court Battle, when Henry Agard Wallace charged that in ordering the return of $200,000,000 of AAA's invalidated processing taxes, the Supreme Court had authorized "the greatest legal steal in history." Since then the Court has come to terms with most of the organic law of the New Deal. But by last week there were signs that the Court fight was passing into a second stage, not over the drafting of New Deal law but over its administration. There were also signs that Henry Agard Wallace meant to be in the thick of it.

Last fortnight. Chief Justice Hughes, addressing the American Law Institute in Washington, declared: "The multiplication of administrative agencies is the outstanding characteristic of our time. The controversies within the range of administrative action may be different and extremely important, and they may call for a particular type of experience and special methods of inquiry, but the spirit which should animate that action . . . must be the spirit of the just judge."

These words riled Mr. Wallace, because they sounded very like the words of a decision last month in which the Court held that the Secretary of Agriculture, when fixing commissions to be charged on sheep in the Kansas City stockyards, should have permitted the commission, firms to hear and oppose a preliminary report by Government investigators before the order became effective.

Smoldering over the decision, because farmers would have to hand over $700,000 in contested fees to some 50 Kansas City commission men, the Secretary burned up for fair over the Hughes speech. He had already written a letter to the Chief Justice, last week reiterated it in a public statement recalling the way the Court had dealt with the same case in 1936: Remanded it to a lower court, for other reasons, remarking that for Government agencies to give interested parties advance notice of their proceedings was "desirable but not essential." To Mr. Wallace, the 1938 decision looked like a plain reversal. He made a sarcastic reference to "that which the Court itself said two years ago was not necessary and now says is necessary."

Meantime, AAA is not the only administrative agency apparently caught out on the limb by the Court's position in the Kansas City case. NLRB, which had issued rulings against Republic Steel Corp. and Ford Motor Co. without giving the companies interim information on its proceedings, hastily asked the Federal courts to withdraw the suits over its rulings until it perfected its procedure. The Third Circuit Court of Appeals in Philadelphia refused to withdraw the Republic order. The Sixth Circuit Court of Appeals in Covington, Ky. likewise refused to withdraw the Ford order.

This confusion was next confounded by the Supreme Court itself. First, the Court ordered the judges of the Philadelphia Circuit Court to show cause why they should not withdraw the Republic order at the board's request. Next, the Court upheld a board ruling against Mackay Radio & Telegraph Co. (affirming the NLRB contention that employes do not lose their status or rights to collective bargaining by going on strike), in which the board had issued no interim report, thus making it appear that NLRB's procedural qualms were unnecessary.

At this point, after significantly conferring with Franklin Roosevelt, Secretary Wallace moved another long step toward a showdown. At his request, Solicitor General Robert Houghwout Jackson petitioned the Court for a rehearing of the Kansas City case on the ground that it had been "wrongly decided" either in 1936 or 1938. Court custom is to grant such requests only if a concurring Justice desires to hear more about the case in point.

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