Due Process

In 1929 walrussy Chief Justice William Howard Taft, suspicious of President Herbert Hoover's intervals of liberalism, wrote:

"I am older and slower and less acute and more confused. However, as long as ... I am able to answer in my place, I must stay on the Court in order to prevent the Bolsheviki from getting control. . . . The only hope ... is for us to live as long as we can. . . ."

Two days after Franklin Roosevelt's third inauguration, James Clark McReynolds, who will be 79 on Feb. 3, resigned as Associate Justice of the U. S. Supreme Court. He was the last of the archconservatives. Justices Willis Van Devanter and George Sutherland had retired; Justice Pierce Butler, solid rock of conservatism, had died. The last leaf on the old tree was Justice McReynolds, and even his fierce keening ("The Constitution is gone! . . . This is Nero in his worst form") had subsided from grumpy, almost invariably dissenting opinions into simple votes of "No" against liberal legislation.

Legend had encrusted "Old Mac's" career; few knew the man himself. To all but a tiny circle of intimates, he was a crotchety, bitter old man. "suckled in a creed outworn," passionately loyal to the thinking of an era now as dead as its fringed surreys, gas lamps and stereopticons; an old man whose many hates included tobacco and Jews (tobacco smoke sent him into tantrums; he alone refused to sign a farewell testimonial from the Court to Justice Louis Dembitz Brandeis; when Hoover appointed Benjamin Cardozo he reputedly roared: "What! Another Jew?" and ostentatiously rattled a newspaper while Cardozo was being sworn in).

Now his nightmare had come true; "Nero" was in for a third term. He refused to attend the inaugural, next day wrote out his resignation--two formal, cold sentences that Franklin Roosevelt answered just as coolly.

But his few close friends knew old Mr. Justice McReynolds as the gallant, trust-busting Kentuckian of another day, the bachelor legendarily faithful to the memory of his schoolgirl sweetheart (for years he reportedly made annual pilgrimages to Ella Pearson's grave in Louisiana, Mo.), the courtly wit of Washington society Sunday breakfasts, the man who wept at the graveside of Mrs. Oliver Wendell Holmes, and for whom Justice Holmes himself confessed a fondness.

Mr. Justice McReynolds' resignation was to take effect Feb. 1. Last week the dour, acid old man could still be seen stumping daily out of his apartment house, drawing on huge old leather gauntlets, like those of a 1905 race driver, and driving his car off in jerky bounces, with a grinding clash of gears.

Who would be appointed in the old Justice's place? Best guess of Washington quidnuncs last week: South Carolina's fox-shrewd Senator James Francis Byrnes, a politician's politician as other men are poet's poets or engineer's engineers--mellow, human, but not profound. Among still good bets was Attorney General Robert Houghwout (pronounced How'-att) Jackson. Two days before Mr. Justice McReynolds resigned, Mr. Jackson published a timely book, The Struggle for Judicial Supremacy (Knopf; $3).

The Attorney General saw the Court's function as a check on the legislative and the executive branches of Government, but not as the supreme or controlling check. The Court's power, he insisted, must be only judicial, never political. Lawyer Jackson inveighed against government by lawsuit.

Two of Jackson's central ideas are ideas fundamental to the New Deal. ". . . Our representative federation was not devised to arrest change, but to provide peaceful and orderly methods for the continuous changes which were recognized to be inevitable." Since the muckrakers, since Brandeis named "The Curse of Bigness," liberals have agreed that industry's powers should be curbed to at least the size of Government's powers. Since the U. S. began, liberals have agreed that changes in the U. S. are inevitable, must only be made 1) peacefully, 2) in the direction of the greatest common good--but not all liberals have added that changes should be made by orderly process of law. In his book Mr. Jackson fails to mention that many men have honestly quarreled with the New Deal's methods in both the attack on bigness and the movement toward change. (He himself apparently differed strongly with Roosevelt over the President's method in the Court Bill.)

The book is a case history of the struggle between the popular and the judiciary's ideas of the general welfare. Mr. Jackson's score card is damaging to the Court's record, for he shows convincingly that time has never once vindicated the Court in any major conflict with the representative branches on any question of social or economic policy. "Its judgment in the Dred Scott case was overruled by war. Its judgment that the currency that preserved the Union could not be made legal tender was overruled by Grant's selection of an additional Justice. Its judgment invalidating the income tax was overruled by the 16th Amendment. Its judgments repressing labor and social legislation are now abandoned. Many of the judgments against New Deal legislation are rectified by confession of error."

Franklin Roosevelt told reporters that he had made his selection of Justice McReynolds' successor but wouldn't announce it for a long, long time.

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