JUDICIARY: The New Constitution

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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.