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0-19 (Rev. 10-29-57) " ‘ non "y to Fours a SEeeD howrinoneZe Supreme Coert's fourtodeur decisiad oOo Gaslight case came’ only two dbyy after Repre- ve Keating discussed ways and means ‘of oe fa Freventing such every divisions on. tofour decisfous undoubtedly create’ a bad impression. They leaye the country’s witimate | Wecider of legal issues on the fence. The various Trotter Clayton Tele. Room _ emedies which have been pro to assure nine- - Holloman fustice participation in all cases before the Ceurt Gandy might, however, cause more difficulty thas an \" jeccasional four-tofour decision. - ~ It is well to femember that an even apiit in the Court does not leave the case undecided. The ‘effect is to make the lower court decision pre wail. This is not very satisfactory to litigants who have carried their case to the highest tribunal. Yet the alternative courses must be earefully weighed: Mr. Keating hag suggested three possi bilities: (1) Creation of a panel of judges from the United States Courts ppeals which oguld tbe drawn upon to give th Stroreme Court Ste judges in every case; (2) the use of retired Supreme Court justices for this purpose; afd (3) authorization of the Supreme Court to sit in three ‘Judge panels in some cases. It would be possible also to name an alternate justice who would fill in when regular members are ill or disqualify themselves. But all of these proposals create practical or theoretical difficulties: Who, for example, would choose a circuit judge / to sit in“any particular case? The person choosing } oT me the substitute judgé might infact be deciding the NOT BECORDED case. This froblem would be minimized by us- 191 MAR ing retired Supreme Court justices, but in many 28 1958 instances such justices would not be ‘available. The idea of having the Supreme Coart sit in — panels of three, as do the circuit courts, seems to be clearly unconstitutional. The Constitution established one Supreme Court, and the nature of Ld Wash. Post and FE Times Herald its function as a final arbiter should preclude any Wash, News attempt at splintering. - Wash, Star , An alternate justice, serving the same purpose N. Y. Herald —— as-do alternate jurors in some cases, might have Tribune the virtue of simplicity but would give rise to N.Y. Journal-_— other objections. This would be a difficult role American to fill satisfactorily, and a five-tofour decision in N. Y. Mirror which the alternate joined might bring as much N. Y. Daily News ‘eriticism as a four-to-four decision by the pegular members. Sometimes critics of the eourts are inclined to say that judges should not disqualify N. Y. Times Daily Worker —— (themselves, but this would mean the participation The Worker -_— ‘of judges who in their own minds doubt their — New Leader 2 2 7? objectivity. Certainly nothing should be done to discourage disqualification where reason for it exists, Perhaps the answer is that an occasional Date four-to-four décision is less disadvantaggouseshan MAR 21 1958 any of-the-presently suggested correctives. '