Liberals Have It

Ever since Charles Evans Hughes was made Chief Justice of the U. S. his friends and critics have been intently watching the Supreme Court for any change in its temper, any shift in its alignment. The Hughes appointment last year focused the Supreme Court in the Senate as an issue of "human rights" v. "property rights" (TIME, Feb. 17, 1930 et seq.). Justices Brandeis, Holmes and Stone, dissenters all, were then cited as the court's Liberal minority upholding "human rights." Justices Van Devanter, McReynolds, Sutherland and Butler were grouped as the Conservative majority. Insurgent Senators flayed Nominee Hughes as a reactionary, a "corporation lawyer" who would ally himself with the court's conservatives to interpret the Law and the Constitution narrowly. Oilman-Utilitarian Henry Latham Doherty spoke darkly of "opinions which will give a monopoly in perpetuity to some one corporation." Friends of Nominee Hughes were of a different opinion; they predicted that he would have a liberal cast of mind on the bench, might often join the dissenters. Soon after the confirmation of Chief Justice Hughes, the Supreme Court was filled by the appointment of Owen Josephus Roberts as Associate Justice. For months nothing spectacular happened because the trends of the Supreme Court are almost as slow and imperceptible as geological formations.

Last week, however, brought a batch of decisions which seemed definitely to establish the fact that Chief Justice Hughes and Associate Justice Roberts had wrought a significant change in the Supreme Court's lineup. With their aid the dissenting minority had become the bench's Liberal majority. Even the court's unanimous opinions had a less conservative flavor.

Chain Tax. The chief case that revealed the Supreme Court's change involved a tax imposed in 1929 by Indiana on chain stores. Under this law the first store pays the State $3 per year, the next four pay $10, the next five $15, the next ten $20 and all above that $25. Lafayette Jackson, owner of a grocery chain of 225 stores on which he was taxed $5,443 as compared to $675 for the same number of individual stores, appealed to the Federal Court on the ground that the tax was discriminatory. A circuit court upheld his contention. But the Supreme Court overruled him, validated the Indiana tax law in a 5-to-4 decision (Justices Hughes, Brandeis, Holmes, Stone. Roberts versus Van Devanter, McReynolds, Sutherland, Butler). Justice Roberts wrote the majority opinion:

"It is not the function of this court . . . to consider the propriety or justness of the tax, to seek the motive or to criticize the public policy which prompted it. ... The power of taxation is fundamental. . . . The restriction that it shall not be exercised [unequally] does not compel the adoption of an iron rule of equal taxation nor prevent variety or differences in taxation. . . The fact that a statute discriminates in favor of a certain class does not make it arbitrary if the discrimination is founded upon a reasonable distinction. . . . The statute treats upon a similar basis all owners of chain stores. ... This is all the Constitution requires."

What gave the Supreme Court decision in this case added point was the fact that chain-store taxation is a live political issue throughout the Midwest and South. In 37 States chain-store tax legislation is pending. The same politicians who criticized the Supreme Court and Chief Justice Hughes were ready to seize upon its opinion now as a prime argument for pressing this form of taxation. Similar chain-store tax cases from North Carolina and Mississippi are now awaiting Supreme Court action.

Red Flag. Chief Justice Hughes again showed a liberal slant last week when he read the court's decision voiding a Communist's conviction under California's "red flag" law. Yetta Stromberg, 19, ran a children's camp at which youngsters pledged loyalty to a red flag. Under the California statute it is a felony to "display any red flag or other device as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action." Declared Chief Justice Hughes:

"The maintenance of an opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means ... is a fundamental principle of our constitutional system. . . . The State court recognized the indefinitiveness and ambiguity of the [red flag] clause [which] is repugnant to the guaranty of liberty contained in the 14th Amendment."

Of the conservative minority, Justices Butler and McReynolds dissented.

Gas Tax. Without dissent the entire Supreme Court upheld the right of Ohio to tax a public service corporation on natural gas it brought in from two adjoining States, regardless of the constitutional prohibition against a tax on interstate commerce.

Citizenship Case. Even more newsworthy was Chief Justice Hughes's dissenting opinion this week in a 5-to-4 decision denying citizenship to Rev. Douglas Macintosh, a Canadian, a War chaplain, now professor of theology at Yale, and Marie Averill Bland, a Canadian War nurse with the U. S. Army, because they refused to bear arms for the U. S. in what they considered an unjustifiable war.

Justice Roberts deserted the Liberals to give the Conservatives their majority. Declaring that neither the Constitution nor Congress made arms-bearing a requirement of citizenship, the Chief Justice protested: "When one's belief collides with the power of the State, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the State has always been maintained. . . . If such a man is to be barred, it should be in unequivocal terms and not in such a way as to give admission to a host far less worthy."

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