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THE REVOLUTION OF 1937

NO WRITER ATTRIBUTED

Appropriate, but irrelevant to any of the real issues facing the Supreme Court and the nation, was the full-dress pageant enacted in the Court building at Washington yesterday. The Supreme Court was 150 years old, to the day. The occasion called for renewed expressions of sentimental attachment to the democratic way of life, to the ideal of a free judiciary, and to the "reign of law as opposed to despotic will," as Chief Justice Hughes declared. It also called for pseudo-historical references to the founding fathers and the role of the Court is constitutional development. All this it received. But the occasion might also have called forth a critical analysis of the possible functions of such a body in a 20th century streamlined democracy. Of these there was no mention.

It is trite to point out that when founded the Court was to serve two principal ends: it was to serve as a healthy brake on dangerous democratic tendencies among the people; and it was to fill out the meaning of a Constitution purposely left vague by its writers. The power to declare legislative enactments void may never have been intended for the Court; historians still disagree. Surely the extraordinary veto powers assumed by the 1932-36 body of nine old men was never envisaged.

But nature and the Reorganization Bill have ruled sway, and today the grandiose white-pillared building on Capitol Hill houses only three, perhaps four, old men. Likewise, a conception of social change has supplanted the former obstructionism. A peaceful revolution, of the sort advocated by Jefferson for every twenty years of a nation's history, has taken place.

What is left? Are we to see a "twilight" of the Supreme Court? No one recalling the stormy days of the Reorganization debate could answer in the affirmative. The Court will be on in the minds of the people, and that which the people desire and reverence will retain elements of real power. But in what direction will it be exercised? That is the real question. And the answer lies, it may safely be ventured, in a parallel query: what will be the future relationship between the executive and the legislative branches of government?

Such a question is not as irrelevant as it would at first seem. A history of at least the last 25 years of American government could be written around the bureaucrat's encroachment on the sphere of the representative legislature. The New Deal did not start administrative legislation. It perfected a system which began with the first regulative commission in the roaring sixties. Congress could not pass laws to provide for every possible eventuality. It had to give wide discretion to the men who administered the laws.

Such a trend is healthy; it makes for flexibility in government, and also for efficiency in crisis times. But it is also dangerous; it is susceptible of abuse, and easily degenerates into personal despotism. The NRA was a horrible example. What is needed is a check-rein, a body to sit in judgment on the judicial angles of the work of a Labor Relations Board or a Federal Communications Commission. Obviously, the Supreme Court is that body. Recent cases involving the NLRB show a tendency to recognize its new duty. Necessary now is only increasing recognition that, in the Chief Justice's words, the function of the court is "not to dictate policy, not to promote or oppose crusades," but to provide the "quiet, deliberate and effective determination of an arbiter of the fundamental questions which inevitably grow out of our constitutional system."

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