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- ==" ad oO ) Supreme Court By Merlo Pusey Legislation From The Bench MOST OF THE controversies . that have swirled around the Supreme Court have concerned its exercise ot legisiative powers. ge! The most infam- ous decision the. . court ever made p—-that in the Dred Seott case f preceding the Civil War — was an adventure in legislation from the bench, There have been many instances since. It was the charge PUSEY of court - room legislating that won support for President Ropsevelt’s attack on the court in 1937. Now again the sharpest barbs fiying in the di- rection of the Supreme Bench are pointed by the same accusa- tion. The court has always resented this charge. Regardless of how far they go in stretching the law to accomplish their purposes, the judges insist that they are merely interpreting the Jaw and the Constitution as they stand. And the best legislators on the bench do not hesiate to denounce the conclusions of their colleagues ’ as judicial lawmaking when they are in disagreement. Only a month ago, for example, Justices Douglas and Biack, who are the court’s leading law-makers at present accused the majority in the Saylor case of writing ‘into the law what Congress struck - out 50 years ago,” i} But if that was a case of : stretching the law, it was a com- ’ paratively minor one. What is of - infinitely greater céncern is the disposition of the court to add to or detract from the law in im- portant matters of public policy, _ Until recently this tendency was ‘ manifested chiefly in stripping down statutes to something less than Congress had enacted. The most notable example was the emasculation of the Antiracket- , eering Act in order to protect ' wnionized truck drivers who had established a monopoly by the \ slugging method. . roe] DURING ITS LAST term the ‘ court went further than it had previously gone in bridging over esps in the iaw and extend | al pepe ques 3 have been included. in the pre- depression days Congress had been negligent in regulating the relationship between companies and national banks. It had put the stockholders of etion” under double liability. Bu nothing could be found in th statutes applying the same obli- gation ‘to the stockholders of State-created holding companies owning bank stock. Congress had simply not legislated on the sub- ject, and when it did take the matter up later it chose a very different means of dealing with bank-holding companies. Yet a bare majority of five justices held the stockholders of a Delaware holding company subject to double liability in spite ‘of Congress’ inaction. Ap- parently they acted on what the layman would call general prin- ciples-—that is to say they voted to sock the holding company, law or no law. The tendency to legislate from the bench came to full flower in the case af puiheastern Underwriters tion. So far as I can see, the real issue was not any shenanigans of the fire- insurance companies or whether or not the business of insurance affects interstate commerce suf- ficient to justify regulation by Congress. Apparently real abuses have crept into some of the agreements insurance companies have made across State lines. The court was unanimously of the view that Congress may reach these interstate aspects of the insurance business {f it chooses to do so: It split 4-to-3 ehiefiy on the question of wheth- er Congress had attempted to do so in passing the antitrust acts. ros CONGRESS PASSED the Sherman Act long after ‘the Su- preme Court had sald that in- surance is not interstate com- merce. The House committee in'charge gave assurance that “every national banking etal the bill was not interded “to | and ° expressed the view that “Con. occupy doubtful grounds” + Sw Lae gress has no authority to deal, : generally, with the subject ire- straint of trade) within the States.” -Later Congress turned many requests to legislate I erstate transactions in " because its jadictary do tees believed beyond reach ‘of Federal holding 1¢14, amended the Sherman Act by the Clayton Act and again defined power. Ta Congress the meaning of “commerce” without including insurance. The sponsor of the bill Representa- tive Webb, told the House spe- cifically that “insurance compan- ies are not reached, as the Su- preme Court has held that their contracts or policies are not in- terstate commerce." These facts clted by the dis- senting justices seem to me to be pretty conclusive evidence that Congress had no thought of sub- jecting insurance companies to the Antitrust Acts. .But the law makers on the Supreme Bench were apparently not willing to wait for a slow-motion Congress to speak for itself. They crude- ly tried to meet a legislative | AN “fs Mr. Nichols.... Mr. Roeen . problem by injecting new me ing into a 50-year-old statute. Now this policy is just as ri rehensible as was the old cour habit of choking off legislat: enactments which it did not li “To force the hand of Congres said Justice Jackson, dissenti: “is no more the proper functi of the judiciary than to tie | hands of Congress.” The judi pendulum has swung from a extreme to the other, A major of the court is still legislatii but with a different set of pre lections. And it will doubt continue to do so as long as i President insists on giving it Majority of crusaders instead judicial-minded men who :; willing to interpret the law jectively and let the chips { where they may.