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Though the President's message on judicial "reform" may contain a few good ideas, it seems to be a case of the wheat and the tares growing together, with the tares outstripping everything else in sight. For in talking about crowded calendars, dockets two and three years behind schedule, waste, expense, and inefficiency in litigation, and the consequent inaccessibility of justice to the "little fellow", Mr. Roosevelt's remarks, as they apply to district courts, and to a lesser extent to the circuit courts of appeal, are true as gospel. Yet to induce from the bad conditions prevalent in the lower courts that the top court needs remodeling is not only illogical: it is a blow to the hopes of all who are working towards a really effective judicial reform.
Not even the most rabid partisan can carp and criticise when the picture of the lower courts is painted dark and dismal. District courts throughought the country, and especially in populous and important financial centers, like the lower New York area, are bogged down in labyrinthinc legal tangles that take years to unravel. While cases sit on the docket for months in and months out in the vain hope of coming to trial, money is lost to all contenders as settlements drags out to the edge of doom, and the inevitable lawyers hover about like harpics waiting for their fees.
But it is not the delicate age of the judges that causes this traffic jam. It is another the failure of the judicial framework to keep pace in size and flexibility with the needs of a growing country. Indeed a seventy year old justice can hand down a crisper opinion,--and many a trial lawyer knows it to his pain,--than one of forty, for the very reason that by his years of training in the law he knows the answers.
If the President can be taken at his word and has really set his heart on freeing the log jam in the lower tribunals, tampering with the Supreme Court is hardly the place to begin. It is like tying a tourniquet below the wound. For the Supreme Court has notably kept up to its schedule, especially in the last twenty-five years. Many cases, as Mr. Roosevelt points out have been refused review by the court. But writs of certiori have never been denied because the calendar forbade: cases have been turned down only because the court could see no probable or possible shadow of doubt in the decisions of the circuit courts of appeal. Yet these very appeal courts, which eliminate much of the work the Supreme Court would otherwise have to look after, Mr. Roosevelt would remove from the course of important cases, in his misdi-rected efforts to gain a more rapidly functioning court of last resort.
The final piece of false reasoning in the President's mind is his assumption that a body of fifteen can work as efficiently as a group of nine. Since the court cannot be split into two sessions,--else there would be no supreme court at all,--fifteen judges will have to sit at once, in effect making a minor deliberative body like a third branch of Congress, rather than a court of law. Thus, unless the present executive heat persuades the present elder justices that it's time to retire, the speed at which the court can perform will be retarded rather than advanced.
The inescapable conclusion is that the President intends to sacrifice his fine ideas for reform of the lower courts on the altar of his last for power over a courageous high tribunal which has hitherto proved recalcitrant to his demand for dictatorial sway. And an interesting commentary on the whole performance is the tomb-like silence from the Harvard Law School, where a group of influential and honorable men, instead of running to the defence of tradition, are indulging in a little sit-down-and-wait strike of their own. For Caesar is ambitious, and the honorable men find it profitable to play on his team.
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