A Trend to Conservatism

The Supreme Court's decision in the District of Columbia Minimum Wage case has given the country the first definite indications of the way in which the new court may be divided in cases involving economic and social questions. The conservatives, who considered the statute unconstitutional, were Justices McKenna, Van Devanter, McReynolds, Sutherland and Butler. Those dissenting were Chief Justice Taft and Justices Holmes and Sanford. Mr. Justice Brandeis did not participate in the case because he had argued a similar case before the court ten years ago. He would doubtless have been aligned with the dissenting minority. While it has never been possible to classify all the members of the court as conservative or liberal, during President Wilson's second term it could be prophesied that, in a really doubtful case, three would favor the conservative view--Justices White, Van Devanter and McReynolds--and three-- Justices Holmes, Brandeis and Clarke--would favor the liberal. The other members of the court, Justices McKenna, Day and Pitney, were the deciding factors. Justice McKenna has been generally but not invariably conservative, while Justice Day often, and Justice Pitney occasionally, joined the liberal group. The appointment of Chief Justice Taft in place of Chief Justice White tended to liberalize the court, for, while he has upheld the injunction in labor disputes, he has also upheld emergency rent laws, which his predecessor considered an infringement on liberty of contract. But the retirement of Justices Day, Pitney and Clarke deprived the court of one announced liberal, and two associates who often joined him in bringing about a liberal decision. Of their successors, Justices Sutherland and Butler appear to be almost reactionary, and there is no indication that Justice Sanford holds views so advanced as those of ex-Justice Clarke. President Harding has already appointed four out of nine members of the court, and may reasonably be expected to have the opportunity to select the successors of the two senior members--Justices McKenna and Holmes. Since his appointment by President Roosevelt in 1902, Justice Holmes has been the most radical member of the court, not even excepting Justice Brandeis, whose selection by President Wilson was the occasion of considerable discussion. After the departure of Justice Holmes, Justice Brandeis will be the sole representative of a group which once had three members. Aligned against him will be four conservatives--Van Devanter, McReynolds, Sutherland and Butler--and a Chief Justice who can surely be counted on to disapprove ill-advised radical action. Even if Justice Sanford should continue to be responsive to the arguments of progression, progressives will have a just cause of complaint if they are not well represented by the next appointments to the court. [For further discussion of the Minimum Wage decision see page 23-- Law.]