THE PRESIDENT AND THE COURT.

Hawke's Bay Herald-Tribune, Issue 21, 9 February 1937, Page 6

THE PRESIDENT AND THE COURT.

As those are aware who liave been following even oasually the development of President Roosevelt's "New Deal" during his first four-years term of office, he has in not a few direetions beeh bloeked by judgments of the Supreme Court of the United States. Ihis has occuned notwithstanding that the steps taken or proposed to be taken have been specifically authorised by both Houses of Congress. In every ease it bas been a question of the interpretation and applieation of the written Constitution as formulated away back just a century and a lialf ago and a.s varied by amendments made in or added to it since. In most cases it has been. a question of eonflict between the authority of the Federal Government and of the States Governments. In the first place it has to be understood that the machinery for securing amendments to the Constitution is of a decidedly cumbersonie type. Each aniendment has first to be'passed by a majority of two-thirds in both the Senate and the Honse of Representatives. It has then to be confirmed by the legislatures of at least three-fourths of the States of the Union, which now number forty-eight. It will thus be seen that the final adoption of an amendmeiit means not on,ly a good deal of time bnt also, where it is at all controversial, a great deal of political manoeuvring. In the next place it has to be realised that in the United States the Supreme Court is all that its title should imply. Unlike our own Supreme Court, which is merely a superioi; Court from which there is is recourse to a yet higher Court, that of Appeal, the American Supreme Court is the final, and in some respects the only, judicial tribunal, and particularly with regard to constitutional issues. The Constitution itselt is a comparatively brief document dealing only concisely with most of the subjects it touches. Thus a vast number of questions have arisen as to its interpretation y when applied to conditions and circumstances that have changed immensely since it was framed. It has necessarily followed that the Supreme Court, by virtue of its unassailable judgments assigning new meanings to the Constitution, has become a good deal of a law-giver. It is in the light of these explanations that we have to look at the method by wbich the cable tells us Mr. Roosevelt proposes to overeome his difficulties as created by Supreme Court decisions. That Court at present consists of a bench of nine judges nominated by the President for the time being and confirmed by the Senate. Tliey hold office for life, or until volnntary resignation or removal upon impeachment for tnisbehaviour. It will thus be seen that tbey are pretty strongly entrenched. What has also particularly to be noted is that judgment goes according to the view of a bare majority of the sitting bench. Moreover, in most of the decisions adverse to the Roosevelt policy the decisions have been tbose of a majority of five to four, with the personnel identical in every case. In short, the bench is in a sense politically divided, five being of a conservative turn giving little heed to the rapidity with which the world is moving? and four being more inclined to meet the requirements of the times. According to the cable received a day or two back President Roosevelt does not propose to set in motion the slow and ponderous measnres required for amending the Constitution so as to admit- without donbt of the pursuit of his New Deal policy. He intends to take the short cut of asking Congress for authority to increase the Supreme Court bench by the appointment to it of any number up to six additional judges. These are, as usual, to be in the President's nomination subject, presumably, to the approval of the Senate. This certainly seems a simple way of cutting the Gordian Knot. It is, however, very much like our own political device of "packing" the Upper House with new members to assure a favourable majority there for a Government fnlly supported in the elective chamber. This is a recourse to which little exception is nowadays taken, but it is one that would Bcarcely commend itself where the administration of the law by our Courts is concerned.