JUDICIARY: The Big Debate

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2) To keep the Court up-to-date by continual infusions of new blood. Although Senator McKellar last week gradually emptied the Senate with two hours of bumbling oratory, he succeeded before doing so in getting over a pertinent point: President Taft appointed five Supreme Court justices, Harding in a little more than two years appointed four, Hoover appointed three. Only four Presidents have had no chance to appoint even one justice: William Henry Harrison (who was President for only a month), Zachary Taylor (President for only 16 months); Andrew Johnson (because a hostile Congress reduced the size of the Court) and Franklin Roosevelt, during whose four years in office no justice has yet died or resigned.

3) To limit the Supreme Court's power to declare laws unconstitutional, Senator Norris and many another liberal favor requiring more than a simple majority of the Supreme Court to hold a law unconstitutional (perhaps seven justices instead of five) in order to give Congress more latitude in legislating on points where the dispute is close on Constitutional questions. Only serious liberal objection to this proposal: at some future day, a liberal majority on the Supreme Court might not be able to invalidate laws abridging human rights passed by a reactionary Congress.

4) To amend the Constitution giving the Federal Government power to regulate labor, agriculture and industry—or whatever may be necessary to achieve the New Deal's aims, Senator Ashurst, before his switch to the President's plan, belonged to this school of thought. Its devotees last week were not much heard from, for it is generally admitted that any amendment which would grant such power would completely destroy state rights, would virtually give Congress power to do anything at all.

5) To make it easier to amend the Constitution. Last week Senators Wheeler and Bone proposed a Constitutional amendment, providing that if the Supreme Court declared a Federal law unconstitutional, Congress should have the power after the next general election to repass the law over the Supreme Court's "veto" by a two-thirds vote. Technically this would not provide a new means of amending the Constitution, but practically it would achieve the same end. As Pundit Walter Lippmann pointed out, this would make the will of two-thirds of Congress supreme over the Constitution, provided they can get themselves reelected, possibly in a campaign where some other issue is paramount. Said he: "I am confirmed in this view by the spectacle of American liberals, so bent upon the attainment of their immediate ends that they are prepared to establish a system of government in which all liberty and all democracy in America would be staked on the outcome of one election. If liberal Democrats are willing to do that, what in the name of the Great Jehovah will the enemies of liberty and democracy do when they win an election?"