JUDICIARY: Old Men in Black

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Vast in importance to the New Deal is the character of the new Congress elected three weeks ago. But trivial is the importance of that Congress compared to the current political importance of the U. S. Supreme Court. For what Congress can do, the Supreme Court can undo. New Dealers last week looked forward with less interest to the doings of Congress than to the answers the Supreme Court will give to a variety of critical questions at its current term.

Outside the small, chaste chamber that once used to house the Senate there was one question which, if put to any of the nine black-robed Justices on the bench, would have resulted in a summary contempt of court citation. The question: Will the Supreme Court follow the election returns? Forthcoming decisions from this august tribunal on NRA, on AAA, on gold contracts, on railway pensions, on collective bargaining, on farm mortgage moratoriums, on many another headline issue will supply an answer that no amount of charming insistence from the White House, no thumping majority votes in Congress can override.

State Cases. No important case involving President Roosevelt's New Deal has yet been decided by the Supreme Court, though a few state laws paralleling New Deal measures have. Minnesota passed a law whereunder, if a landowner defaulted on his mortgage, the mortgagee could not foreclose for a period of two years. The Supreme Court in that case held that, in an emergency, a state had the power to set aside contracts. Again New York passed a law providing for minimum milk prices. Twice the Supreme Court has upheld the State's power. Apparently the majority of the Court is disinclined to let a strict interpretation of the 14th ("Due process of law") Amendment stand in the way of economic experimentation by states in times of emergency.

Federal Cases. A generally similar issue is involved in whether Congress had the right to invalidate all contracts calling for payment of gold or its equivalent. Last week Attorney General Cummings announced that he will argue the question in person before the Supreme Court. Since the lower courts have generally upheld the law, Mr. Cummings is probably not risking his reputation. One case involves a New Yorker who wants payment in the equivalent of gold for a $1,000 bond of the Baltimore & Ohio Railroad—that is, 1,693 paper dollars valued at 59¢ each. Three similar gold cases involving Missouri Pacific obligations, a Liberty bond and treasury certificates are before the Court. Last week the Supreme Court granted the Government's request to let Mr. Cummings argue all four at once on Jan. 8.

If the Court should hold against the Government the whole economic structure of the country would be badly rent. Many a corporation would go bankrupt and the U. S. Government would find its debt increased by two-thirds. But the likelihood of the Supreme Court denying the validity of the gold contract law is considered relatively remote inasmuch as the Constitution specifically gives Congress the power to "coin money, regulate the value thereof...."