SUPREME COURT: Power of the Bench

There is a document beginning, ” We, the people …” of which certain men exclaim: ” We, the people, are unfairly treated by it.” It is the Constitution of the United States. The exclaimers are the ” radicals” and liberals of Congress. The unfairness which they find in it is that the Supreme Court may (by a five to four decision) overrule an act of Congress.

The protestants. Senator William Edgar Borah of Idaho has announced his intention of making a fight on the 5-4 rule in favor of a 7-2. In association with him will be Representative Roy Orchard Woodruff, Republican, one time dentist of Bay City, Mich., later its Mayor, now its Congressman. They have prepared a plan and a program.

Their plan. These men have drafted a bill which they will introduce into both houses of Congress at the session which opens next month. The bill would simply require that in declaring an Act of Congress unconstitutional the Supreme Court must have at least seven of its nine members in agreement with the decision.

Their program. When this bill is introduced it will ” have hard sled-fling ” in committee, as Messrs. Borah and Woodruff admit. In the Senate Judiciary Committee, especially, there will be difficulty, for the Committee includes Brandegee of Connecticut (Chairman), Cummins of Iowa, Colt of Rhode Island, Sterling of South Dakota, Shortridge of California, Walsh of Montana. Almost its only supporters will be Mr. Borah himself and Senator Norris of Nebraska. But the proponents of the bill hope to get it out on the floor of Congress and fight for it there.

If necessary in order to secure passage, the stipulation for a 7-2 vote of the Supreme Court may be modified to 6-3.

It will be noted that the proposal is in the form of a bill, not an amendment to the Constitution. Senator Borah and Representative Woodruff hope that a bill will be sufficient to secure their end. They claim the bill would affect the Supreme Court’s jurisdiction, not alter its power. But since it is a bill, it could, if passed, be nullified by decision of the Supreme Court itself. Then it would have to be repassed in the form of an Amendment. The advocates of the bill feel sure that an Amendment would be unnecessary, because Daniel Webster once introduced such a bill; Henry Clay and Martin Van Buren favored it.

Arguments Pro.

1) That the existing condition is indefensible, because with four good legal opinions on one side, and four good legal opinions on the other, the ninth Justice, alone, can arbitrarily swing the decision of the Court and overrule the expressed intentions of the nation’s representatives.

2) That the present law has allowed the Supreme Court to overthrow time after time laws to restrict child labor and other necessary social legislation.

Arguments Con.

1) That only 50 times in the history of the nation has the Supreme Court declared Acts of Congress unconstitutional; that only in nine of these 50 cases was the decision made 5-4.

2) That to establish a 7-2 rule would produce a worse condition than at present: three objectors on the bench could do as much to uphold an iniquitous and unconstitutional law as five Justices can now do to overthrow a good one.

Senator La Follette of Wisconsin and his followers have an even more radical plan which would allow no subordinate judge to set aside an Act of Congress and would allow the Supreme Court to set aside a law only once. If it should be passed by Congress a second time the Supreme Court would be powerless to annul it. This would have the effect of allowing Congress to override any part of the Constitution at will, if Congressmen could agree with themselves twice in succession. Clearly this plan would require a Constitutional Amendment and Mr. La Follette is planning to submit one. One of the arguments of the Borah-Woodruff group is that their plan would forestall the La Follette and other radical plans.