JUDICIARY: 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.