JUDICIARY: Busy High Bench

Mr. Chief Justice Charles Evans Hughes thrust his leonine head forward over the shining mahogany bench and solemnly demanded:

“Where was the body found?”

An elegant insurance company lawyer, resplendent in morning clothes, laid down his papers and stepped toward the bench.

“If the Court please,” he said, “there were no witnesses to the shooting but the evidence indicates that it must have happened in this way. Jeff Bowers went to the drawer where the gun was kept”—he made the gesture of opening an imaginary drawer—”took the automatic in his hand”—he pointed his manicured finger at himself—”and fired. The bullet went in here and came out here. . . .”

The nine members of the Court leaned forward fascinated. Seldom does the high court have the opportunity of studying a crime of violence. The late Jeff Bowers, hardware clerk, found four years ago mysteriously shot in a Washington store, provided such a case. For if Jeff Bowers committed suicide, that was all there was to it; but if he was killed in the line of duty, Widow Bonnie Bowers had a legal claim for compensation. From Mrs. Bowers’ lawyer the Justices learned that there were no recognizable fingerprints on the gun and presumably Jeff Bowers could not have wiped them off afterfatally shooting himself; learned that he had loved his wife, had lived carefree and blithe, had only the night before his death written to his mother promising to write her soon again. For an hour, like amajestic homicide squad, the Justices questioned the lawyers, leaving no clue, physical or psychological, unturned.

The case of Jeff Bowers was not the only incident last week which showed that nine conscientious, overworked old men were having the time of their lives. Burdened with an immense responsibility, faced with the necessity of soon rendering decisions on the constitutionality of AAA processing taxes, the Bankhead Cotton Control Act, TVA (all probably to be argued in December) and later on the constitutionality of the Guffey Coal Act (see col. 3) and the Utilities Act, the Justices began the week by whipping off no less than 21 decisions. None of the decisions affected the New Deal but, with a vigor that belied their age, every one of the nine Justices dissented in from one to five opinions. Four decisions were 5-to-4.

Biggest moment of a busy week for every member of the Court was when once more it sat in judgment on the question of whether much of the New Deal is legal or illegal. The case arose over a bale of cotton numbered 407784. One night a year ago at Clarksdale in Coahoma County, Miss., Fred Hastings allegedly asked Jed B. Earner, a Negro helper, to steal cotton from the warehouse of Federal Compress & Warehouse Co. Black Jed quietly rolled three bales of cotton, one of them No. 407784, out of the warehouse. He confessed that for these services he received $16.50, $6 and $15.

Because the cotton came from a bonded warehouse, licensed under a Federal law passed in 1916, white man and Negro were indicted for Federal crimes. Jed Earner pleaded guilty, was sentenced to eight months in jail, was later released when Fred Hastings, who fought the case, got the law declared unconstitutional by a Federal judge. Last week Fred Hastings had famed counsel to plead his case before the top court of the U. S.:ex-Solicitor General James M. Beck.

That theft should be punished by a state, Mr. Beck heartily agreed, but that a theft could become a Federal crime because the object stolen had been in possession of a Federal licensee, he vigorously denied. Thereupon Fred Hastings, Jed Earner and Bale No. 407784 were forgotten. For the question of the Federal Government’s licensing powers—on which rest AAA’s marketing agreements, the Potato Control Act and many another New Deal project—had been raised. The debate was taken out of the hands of Mr. Beck and his opponent, Assistant Attorney General Joseph B. Keenan, for the Justices began a rigorous catechism. On Mr. Beck descended ”Liberal” Justice Brandeis. “Neither the cotton involved nor the warehouse receipts on it are instrumentalities of interstate commerce,” cried Mr. Beck. “How would you draw a distinction?” demanded Justice Brandeis. “If the Government has the power to create an instrumentality, why hasn’t it the power to say ‘if you destroy or impair it, you will be punished?’ ”

“All the Government does is to give prestige and sanctions to an instrumentality,” retorted the eloquent Mr. Beck.

On Mr. Keenan descended Conservative Justices Van Devanter, Butler, McReynolds, Sutherland.

“Would it be a Federal crime,” asked one, “to steal a cow from a licensed stockyard?”

“Not at all,” said Mr. Keenan, “because no warehouse receipts are issued for cows.”

“Aren’t you contending that the Government could make it a Federal crime to steal a bale of cotton off a farmer’s wagon, because the cotton will eventually go into interstate commerce?” demanded Justice McReynolds.

“I never made any such absurd statement,” declared Mr. Keenan.

Said Mr. Beck: “In his Farewell Address, George Washington solemnly warned his and all succeeding generations of Americans that the Constitution could be more easily ‘undermined’ than ‘directly overthrown.’ Today time gives that prediction proof, and the most effective method of undermining the Constitution is by the doctrine that the Federal Government can usurp the police powers of the states by the simple method of licensing.”

Said Mr. Keenan: “The Government is not trying to police the morals of Mississippi residents. As far as the Warehouse Act is concerned the Government does not care how much they steal from one another in Mississippi as long as they keep their hands off cotton in bonded Federal warehouses. When they don’t, it is a burden on interstate commerce.”