JUDICIARY: New Home, New Hope

Last week the U. S. Supreme Court held its final sitting for the 1934-35 term, adjourned for the summer. In the old Senate Chamber just off the Capitol rotunda where it has sat since 1859, it concluded its year’s work by handing down a few inconsequential opinions, admitting a flock of freshmen attorneys to practice.

Anti-climactic though its wind-up was, the Court had amply justified the predictions of those who foresaw that the fate of the New Deal depended more on nine old men in black than on the 531 members of Congress (TIME, Nov. 26). When the nine Justices folded their black robes about them and marched out of their dark semicircular courtroom last week, a long and important chapter in Supreme Court history had come to an end.

Coming to grips with the constitutional complexities of President Roosevelt’s program for the first time, the Court, within the year had:

> Declared (8-to-1) that Congress illegally delegated its legislative power in giving the President discretionary authority to forbid the shipment of oil produced in violation of the Oil Code (TIME, Jan. 14).

> Upheld (5-to-4) the Government’s right to cancel the gold clauses in all contracts, although unanimously condemning the ethics of the Government’s repudiating its own contracts (TIME, Feb. 25).

> Declared (5-to-4) the Railway Pension Act unconstitutional for going beyond the Federal Government’s power to regulate interstate commerce.

> Ruled that Franklin Roosevelt had done wrong in removing Federal Trade Commissioner Humphrey for no cause except that he was a conservative, thereby protecting the Government’s quasi-judicial regulatory bodies from political tampering.

> Decided that NRA codes were an unjustifiable delegation of legislative power, that the Federal Government’s power to regulate commerce between the States does not include power to regulate practices which do not directly affect interstate commerce.

Score: For the New Deal, 1; Against, 4.

More important than this score was the manner in which the Court wound up its historic session. In the Humphrey case, in the NRA case and in the Frazier-Lemke mortgage case (not strictly a New Deal item), the Court did not divide. As Chief Justice Hughes thinks it should do, and as he always works to try to make it do, the Court spoke unanimously. These unanimous decisions meant more, however, than a victory for the Chief Justice. They served warning on the New Deal that it could not hope to win a legal whitewash by packing the Court with New Dealers. And the spectacle of liberals and conservatives united was the most convincing evidence that the Constitution itself, not the will of five obstinate old men who happened to be a majority, had interdicted the policies of the New Deal. By unanimity the Court saved itself from serious criticism, avoided the immediate recurrence of political appeals to deny a mere majority of the Justices the right to declare a law unconstitutional.

Its work done and its prestige & power still high, the Court prepared to take the most important physical step in its 146 years. It left the U. S. Capitol for good. In the autumn when it sits again it will assemble for the first time on its own premises, in the $10,000,000 Greek temple designed for it by the late Cass Gilbert, situated across the Capitol plaza.

For the Court this will be a new deal of its own, a belated recognition of its might as the third independent branch of the U. S. Government to have a home of its own. If its new independence and its break with 76 years of history in the hand-me-down of the Senate have any symbolic significance, the New Deal might hope for something new from the Court. But across the plaza with the nine Justices to their new home will doubtless go all their ancient precedents, precepts and prejudices, to be used in passing on all the other New Deal disputes now on their way up to the highest tribunal in the land.

Although Franklin Roosevelt last week seemed to feel that the implications of the Court’s NIRA decision outlawed the whole New Deal (see p. 11), more disinterested observers saw in that decision just two touchstones which might be used to gauge the Court’s probable reaction to other legislation: 1) unconstitutional delegation of legislative authority and 2) unconstitutional attempts to stretch Congress’ power to regulate “commerce between the States” to include acts which only remotely affect interstate commerce.

Prime New Deal laws and proposed laws which the Court in its new home will probably pass on:

> The Agricultural Adjustment Act, which gives the Secretary of Agriculture power to fix processing taxes. The Hoosick Mills Corp. of Boston has a case in the Circuit Court of Appeals questioning the constitutionality of this delegation of power. Furthermore, if the proposed AAAmendments are passed, the power which the Secretary would have to license distributors of farm products will doubtless be questioned as exceeding the power to regulate interstate commerce.

>The Bankhead Act, which places a 50% tax on all cotton raised by growers in excess of quotas allotted to them.

> The Reciprocal Tariff Act, under which the President negotiates three-year trade pacts setting up new tariff rates on specific items, a delegation of tariff-making power which many a tariff-protected manufacturer will jump to protest.

>The Wagner Labor bill, which proposes to regulate labor relations on the ground that failure to do so encourages strikes which affect interstate commerce.

The Securities Exchange Act, the proposed Public Utilities Holding Company bill, the Social Security bill, all will probably be questioned on constitutional grounds, but it does not strictly follow from the NIRA decision that they will be declared unconstitutional. In every case the Supreme Court will decide whether Congress has delegated power recklessly or under proper limitations, whether any business is interstate or intrastate and whether a given practice directly affects interstate commerce.

An adverse decision regarding certain features of these laws may not wreck them as last fortnight’s decision wrecked NIRA. Congress still has the two great powers on which it has always relied, the power to tax and the power to give away money —penalty and bribe. With these powers a multitude of wheels can be made to go around for a long time to come.