Rocket & Flowerpots

In his chair at the left of Chief Justice Hughes last Monday afternoon, having returned to duty only a week before after an attack of grippe, sat the Supreme Court's oldest and, to some minds most distinguished member. Spectators who had come to hear the arguments in the Strecker deportation case (see p. 14), occasionally glanced at the little, attentive old man, his head, crowned by fluffs of unruly grey hair, dwarfing the narrow, black-robed shoulders. As was not unusual for Mr. Justice Brandeis, he was smiling to himself.

Shortly after noon at the White House Franklin Roosevelt had received a two-line note. "Dear Mr. President: Pursuant to the act of March 1, 1937, I retire this day from regular active service on the bench. Cordially, Louis Dembitz Brandeis."

Thus 82-year-old Louis Brandeis, like Willis Van Devanter and George Sutherland before him, took advantage of a 1937 judiciary act, the ghost of Franklin Roosevelt's ambitious Court Plan--permitting Justices with ten years' service to retire on their full $20,000 salary after 70. Whether he did so for his health, or to head a world-wide crusade for less fortunate Jews, or because his friend Felix Frankfurter was at last at hand to carry on his judicial tradition in the Court, Louis Brandeis did not say. When his letter was released later in the afternoon, he refused to discuss it. Franklin Roosevelt wrote a gracious reply: "One must perforce accept the inevitable. . . . There is nothing I can do but to accede. . . ."

So, quietly, departed from the Court the man whose appointment to it by Woodrow Wilson in 1916 shocked every then living ex-president of the American Bar Association including William Howard Taft; raised a storm in Senate and press that echoed long after he took his seat on the bench. Mr. Taft later apologized to Mr. Brandeis for doing him a "grave injustice." But many of his contemporaries lived and died in the belief that Louis Brandeis, the "People's Lawyer" of Boston where he practiced for 37 years, the courtroom David against the industrial and financial Goliaths of the new century, a man whose whole conception of property was truly and dangerously radical, was no fit Justice of the U. S. Supreme Court.

Not until he was an old man did Louis Brandeis see an era where many men in power shared his penetrations and fears. A "liberal" Justice before the New Deal crystallized division of social & political thought on the Supreme Court, in his old age Brandeis moved from dissent to assent. But he was no "New Deal Justice." The core of his social philosophy was a distrust of all arrangements, public or private, that too heavily taxed human fallibility. His grave objection to NRA was vigorously made known to all his colleagues. He resented humanly the attack on age which Franklin Roosevelt used to justify his attempted Court purge. In a dissent he wrote in 1932--to a decision holding unconstitutional an Oklahoma law for licensing ice manufacturers--Justice Brandeis left one of his likeliest judicial epitaphs: "There must be power in the States and in the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs."*

As news, the resignation of Justice Brandeis was an unexpected rocket that floodlit the Federal judiciary this week. All last week, however, Franklin Roosevelt had been busily setting off flowerpots in his own show of judicial fireworks.

Having been soundly rebuked by the Senate which turned down (72 to 9) his nomination of a Virginia judge over the heads of Virginia's Senators Byrd & Glass, the President gave the Senate his version of Article II of the Constitution. Substance: the Senate's power of "advice & consent" in Presidential nominations was meant to be a consultative function of the Senate as a whole, usurped the President's appointive power if it was invoked by one or two Senate soreheads. Soreheads Byrd & Glass, along with other Constitutionalists, still maintained that the appointive power was dual.

So stirred was Utah's ordinarily placid New Dealer Elbert Thomas that a "vision" came to him in bed. He got up at 2 a. m. to write a speech which he delivered next day in the Senate. "To attempt to coerce is fatal, to attempt to outwit is disastrous," thundered Senator Thomas. "Presidents will continue to be made and unmade in the actions of the Senate of the United States." When Senators rushed up to thump Elbert Thomas' back, congratulate him, invite him to lunch, he weakly smiled that he wanted to go home to bed.

Franklin Roosevelt's practical solution was to make three new judicial appointments which: i) pointedly disregarded the Senate, and 2) made it tough for Senators to complain. All these three were just the kind of non-political appointments which made editorial applause obligatory. Disregarding complaints by Ohio's unpredictable Senator Vic Donahey the President chose, for the Sixth Circuit Court of Appeals, distinguished Dean Herschel W. Arant of Ohio State University's Law School. Disregarding a White House call by Pennsylvania's loyal Senator Joe Guffey, the President chose for the Third Circuit Court able Philadelphia Lawyer Francis Biddle, former chairman of NLRB and counsel to the Congressional investigators of TVA. To the seat vacated by "Borrowing" Circuit Judge Martin T. Manton in New York, he appointed on his own hook distinguished District Judge Robert P. Patterson, a Republican.

*With a Westerner long overdue for appointment to the Court, Washington wise money was on three dark horses: Senator Lewis B. Schwellenbach of Washington; Judge Joseph C. Hutcheson Jr. of the Fifth Circuit Court of Appeals (Texas); Dean Wiley Blount Rutledge Jr. of University of Iowa College of Law, whose appointment would tickle three States, since he was born in Kentucky and summers in Colorado.

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