JUDICIARY: Dred Scott Cited

Headlong into what some of its members proclaimed as the most momentous issue before U. S. citizens, the Senate last week plowed with historic fervor. The issue arises from the stern necessity which requires the Supreme Court to spend a large part of its time as a board of economists controlling the profits of public corporations under the 14th Amendment.

What prompted this onslaught upon the Supreme Court was the nomination of Charles Evans Hughes as Chief Justice, before the Senate for confirmation. Because his appointment was discussed under the Senate's new open-session rules, all the world could follow the bitter ebb and flow of debate which a year ago would have been secret. Likewise thrown aside was the taboo that the Supreme Court is sacrosanct and thus above criticism.

Though Mr. Hughes was the bull's eye at which his critics fired, the target was much larger than his personality. He merely served as a symbol of what many a Senator violently disliked in the Supreme Court itself. Even after the Senate had confirmed his nomination, senatorial hostility toward the court continued to run on in a series of resentful threats about curbing its enormous authority.

Behind the contest on the Hughes nomination was a major question of economics, in the centre of which stands the Supreme Court. The 14th Amendment says: "Nor shall any State deprive any person [or corporation] of life, liberty or property without due process of law." When a State agency attempts to reduce or regulate the rates charged by a public service corporation (power, gas, transportation, communications) and thereby affect its profits, that corporation may carry its objections to the Supreme Court. There it claims that the State agency has violated the 14th Amendment by depriving it of its "property" (i. e., a fair income on its investment) "without due process of law." The Supreme Court is asked to set aside the State agency's order as confiscatory. Immediately the Court is confronted with not a legal but an economic question: What is the "property" the corporation complains the State has deprived it of? To find an answer the Supreme Court must plunge into a maze of controversial economic facts and theories, on which the Constitution throws no light. Its judges become economists; hard-and-fast law is left behind.