The New Constitution

This week, as the Supreme Court began its four-month vacation, Chief Justice Charles Evans Hughes, 79, sent his resignation to President Roosevelt. He wrote: "Considerations of health and age make it necessary that I should be relieved of the duties which I have been discharging with increasing difficulty." The Chief Justice's retirement marked the end of a period. When the Justices stood up after their last session this week, disappeared through the tall sateen-covered curtains behind their chairs and shucked their robes, they were more than eight judges beginning their vacations. The old Court that had blocked Franklin Roosevelt's first New Deal--Butler, Sutherland, Van Devanter, McReynolds--had disappeared, by death or resignation. The transitional Court, of which Chief Justice Hughes was the great symbol, was no more. The new Court that went vacationing this week was the interpreter of a new Constitution.

The old Constitution was dead as a mackerel. Bit by bit over the last four years the Supreme Court had killed it--as man by man Franklin Roosevelt put new Justices on the bench.

As long as the power of the U.S. Government was divided on roughly equal terms between the Judiciary, the Executive and the Congress, a change in the Supreme Court did not mean a sweeping change in the interpretation of the Constitution. But industrialism welded the U.S. people toward economic unity. More & more problems arose requiring national solutions. Nearly everything but the law rode over artificial State boundaries. In the depression the U.S. began to demand that its Executive be more executive; that the Government govern more, assume the responsibility for its citizens' economic security and livelihood. So the New Deal, although it failed in its frontal assault on the Court, in 1937, was able by indirection to get the Nine Old Men out of the way.

Hardly had the President's unsuccessful Supreme Court Reorganization Bill gone to Congress, when the Nine Old Men, themselves abdicating their power to uphold the letter of the Constitution, began scuttling the older Constitution itself--a process practically completed in the past term.

The new Constitutionalists hold that each age of Americans must reinterpret the Constitution in the light of changed social and economic conditions. Throughout the New Deal, the man who has held this belief most firmly has been Attorney General Robert Houghwout Jackson; and on the basis of Jackson's thinking, Franklin Roosevelt made his appointments to the Supreme Court. To do the job he sent up Hugo LaFayette Black (October 1937), Stanley Forman Reed (January 1938), Felix Frankfurter (January 1939), William Orville Douglas (April 1939) and Frank Murphy (February 1940). Liberally interpreted, these men are the new Constitution.

The U.S., still befuddled by the bitter 1937 controversy over Ku-Kluxer Black's fitness as a judge, was still unaware that the fiercely intent, soft-spoken Alabaman, formerly an opportunist politician, had settled down to make himself into a good judge. Few citizens knew how outraged Chief Justice Charles Evans Hughes had been by what he regarded as the unjust persecution of Black. To the U.S. at large, Black was still a major unknown and a man to be a bit leary of. The little Justice, now 55, playing tennis in the mornings on the court behind his Colonial home in Alexandria, Va., addressed himself to his work, as always, and very rarely participated in Washington's social life. He still needed a lot of seasoning to become a great jurist, but he had definitely become a reputable judge. Root of all his opinions: the Congress or the Legislatures know best, because they represent the people.

At the other extreme lolled Frank Murphy, the President's greatest single disappointment, and the man he finally kicked upstairs. Bachelor Murphy is the most inveterate cocktail-party addict in Court history, although he neither drinks nor smokes.

A humanitarian mystic, the Justice had not yet had a chance to prove himself on the bench, but Washington had already blithely indexed his judicial ability on the basis of such cracks as that made when Murphy read his first decision: "Mr. Justice Huddleston has just delivered his first opinion" (Edwin E. Huddleston Jr., then Murphy's law secretary), and Columnist Walter Winchell's description of the Supreme Court as "Justice tempered with Murphy."

Another Roosevelt-appointed Justice whom Washington had low-rated was Felix Frankfurter. The Harvard Law School professor, liberal, idea man, was described by some as a hair-splitting fussbudget, an idea juggler, a legal technician with 1921 ideas of liberalism. This did less than justice to a man who had proven himself on the Court as a real legal scholar. But his virtues were obscured by his personal conceit and his eagerness to meddle in the Executive branch, plying administrators high & low with advice on policy and suggestions for action. Such busybody activities irritated everyone.

Justice Douglas brought to the Court something it could well use--an intimate knowledge of corporate finance and familiarity with the complexities of sound business finance as distinct from the complexities of financial finagling. A sharp, hard, cold pragmatist, Douglas remained the toughest-minded man in the New Deal; but whether he would long remain on the bench in the defense emergency was a guessing game. Wiseacres guessed not.

Reed, a quiet, solid, plow horse, had settled comfortably into the lifetime harness of the judiciary; was writing clean, progressive law; made neither scandal nor controversy.

These five, with the guidance of the man who had carried the liberal banner through years of defeat. Harlan F. Stone, now formed the Court's clear majority--a majority that became unanimous on many an occasion, as the Chief Justice and Owen Roberts went along.

The Court session which ended this week was marked by several milestones: the opinions reached further than any session since the 1936-37 term, the year of the Court's Big Wind, when the Wagner Act and Social Security legislation were held Constitutional. This time the Federal Wages and Hours Act was upheld unanimously, even though "control of intrastate activities" was involved; the famed Hammer v. Degenhart decision of 1918, invalidating a child-labor law, was specifically overruled; the Government's power of regulation over navigable streams was held to be "as broad as the needs of commerce," the Government was authorized to regulate State primaries as well as general elections; the refusal of a company to hire employes because of union affiliations was held to be an unfair labor practice; officers of a labor union were held to be not subject to trial under the Sherman Antitrust Law; a labor union was held entitled peacefully to picket a business establishment even though no members of the union were employed there. Repeatedly the National Labor Relations Board and labor unions were adjudged right. The powers of corporations, of States (except in taxes) and of individuals were curtailed; the power of the Government extended to the point of exaggeration.

U.S. lawyers, liberal and Tory, had already been given one new guide to the law: no longer could any precedent established before March 1937 be relied on as a clue to the future. The U.S. Constitution was no longer written, and the law was what the Justices were making it.

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