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Jhae > U.S.News & World Report ..» “National powers are being dangerously enlarged” that neither the federal nor State povernmernit may tu the income of officials or emploves of the other, on the principle that a tax on income is a tax on its source and that the one Goveraument nay net levy a tax which will impose a burden on the governmental activities of the other. This was overruled by a 19348 decision. That a burden Interpretation of the Fourteenth Amendment has opened up whale new vistas for federal judicial review of crimina convictions in State courts, in a manner and to an extent un til recently unknewn to Jegal and judicial thinking in this country and with interminable resulting delays in bringing the wrongdoer to final justice. State convictions may be and ;wasTimposed pan the States by this jdiciat change an the law is evidenced by the subsequent necessity for increasing the salaries of State emploves in an amount commensurate with the resultant tax exaction. Of more recent vintage is the Supreme Court holding that Congress has pre-empted the field, leaving no room for the State antisubversive laws found in the statute books of 42 States, and a companion decisian emasculating a State statute empowering, its attorney general to investigate subversion and examine witnesses in that connection. Two others upset State action denying admission to the bar_to two applicants who refused to answer questions con- appointment of counsel for the defense, for failure to provide the accused, on appeal, with a transcript of the trial at public expense, ctc. As the ambit of federal judicial authority is thus constant ly widened, we may get a glimpse of things tu come. Already in lower federal courts, it has been urged and those courts have considered whether a State law prohibiting publig employes from belonging ta unions is violative of the due process, — privileges-and-immunities and — equal-protectio clauses of the Fourteenth Amendment or abridges the free dom_of expression and association guarantees of the Federa cerning Communist affiliation. Lawyers are officers of the Stale courts, admitted by them and under their control, The manner of this recent invasion of that relationship by the federal court has proved startling to members af the bench and bar as well as the public. Ruling Against a School Board Equally disturbing to those concerned about local govern- ment is the action of the Supreme Court upsetting a local school board's disruissa), of an employe. fr invoking the Fifth . ence of Ghief- Justices: amc marg~othets shave spoken-wit Constitution, or whether treaties of the U.S., made by thd Constitution the supreme Jaw of the land, may supersede Statg and local law governing matters of local concern; or whethe a State may proceed with removal proceedings against the mayor of one of its cities for malfeasance while criminal pro ceedings on the same grounds are pending against him. These are part of the body of decisions giving rise to a con cem that, by judicial construction, national powers are being too greatly and dangerously enlarged and State and loca power correspondingly contracted. Of this trend, the Confer Amendment and refusing to answer questions put to him in an authorized inquiry concerning Communist activities. A number of fairly recent cases construing the interstate- commerce clause disclose a judicial shift from the original position that the regulatory power of Congress extends only to goods moving and persons actually engaged in interstate commerce. The later holdings are that that control extends to anything or anyone engaged in that which affects inter- state commerce. Accompanied by new decisions applying the pre-emption doctrine also to the field of labor relations, the result is that we now find national action controlling, and constemation. Great judicial self-restraint in this critical field of federal-State relationships was enjoined upon the Suprem¢ Court by the members of the conference. 1 concur. If Jefferson were to reappear on the American scene today would he feel impelled to say, “I told you so,” pointing to hi language of 1823: “,., there is no danger I apprehend so much as the con solidation of our government by the noiseless, and there fore unalarming, instrumentality of the Supreme Court. either directly or in effect, to the contrary, namely in such areas as production or processing of goods before entering commerce and, as well, after having come to rest following movement in commerce. The Court also upset a tong line of its decisions by holding in 1944 that the writing of insurance is commerce subject to federal control under the commerce clause. Thereafter Con- gress passed an act restoring a measure of State control over the industry. Then, there is the case holding, in effect, that a farmer's raising of wheat for consumption on his own farm i min ' bject_ to federal regulation. Why Court Decisions Change =o i What, you may ask, accounts for this change in judicia holdings with its resultant change in federal-State relation ships? If, as commonly supposed, courts follow precedents how can these latter-day decisions be explained? In this con nection, comments of Mr. Justice Oyen J. Roberts in 1944 are pertinent. Said he: “| have expressed my views with respect to the presen policy of the Court freely to disregard and to overrule con sidered decisions and the rules of law announced in them This tendency, it seems to me, indicates an intolerance fo what these who have composed this Court in the past have Federal law even has been held to extend to the relations between a local automobile dealer and his repair-shop em- ployes, excluding the power of State courts, acting under State law, to enjoin unlawful picketing designed to compel the employer to force his employes into a union. A State statute aimed at preventing strikes and lockouts in public utilities has been upset, leaving States powerless to protect their own citizens against emergencies resulting from suspension of essential services, even though such emergency be economically and practically confined to one State. Even the employment of a window washer in a building conscientiously and deliberately concluded, and invoive: an assumption that knowledge and wisdom reside in which was denied to our predecessors... . “The reason for my concern is that the instant decision overruling that announced about nine yes ago, tends t bring adjudications of this tribunal into the same class as ¥ restricted railroad ticket, good for this day and train only. At root of the problem is a difference in concept of the proper function and role of the Supreme Court. The Court i divided into two competing judicial philosophies. Let us ex amine a bit of the thinking of each. ° in which office space is leased by a tenant engaged in inter- state commerce may, by reason of the latter fact, be subject to federal labor law to the exclusion of State control. 92 First, there iz the language of John Marshall, who said: “Courts are the mere instruments of the law, and ca will nothing. . . . Judicial power is never exercised for the U. 6. NEWS & WORLD REPQRT, Dec. 12, 195