A series of opinions has recently been handed down by the Supreme Court, which, for their immediate consequences as well as for the attitude of mind they imply, should not escape alert public discussion. Strangely enough, in the hurly-burly of these days their deeper implications have hardly caused a ripple, and yet they challenge the wisdom of leaving the ultimate law-making power of the nation to nine men. At least, they call for a consideration of the safeguards to be imposed upon the extraordinary judicial power of the Supreme Court. 

We refer to five decisions, three of which raise, is Mr. Bryan would say, "human rights," and two of which involve "property rights." It would be easy enough for a doctrinaire to classify these decisions by saying that the majority of the court sustains "property rights" and decides against "human rights." But the classification is not so easy. Generalization about the Supreme Court, like all generalization, must attend detailed knowledge and interpretation. The decisions to which attention is here called furnish appropriate material for inquiry. Their especial value lies in the fact that they furnish a critique upon the work of the Supreme Court by its own members. 

The first decision in the series is the now famous Abrams case, in which, it will be recalled, Mr. Justice Holmes (concurred in by Mr. Justice Brandeis) commented upon the action of the majority of the Court in these burning words:

In this case sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them …. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping demand 'Congress shall make no law …. abridging the freedom of speech.' …. I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

On March 1st the Supreme Court sustained convictions under the Espionage act against the editors and the business manager of the Philadelphia Tageblatt for publishing "false reports and false statements with intent to interfere with the operation or success" of the forces of the United States. (Schaefer v. United States.) The supporting proof was shocking in its triviality. Suffice it here to point out that one falsification, for which men received sentences of two and five years, was in fact a mistranslation by the government translator, and the other "false statement" which presumably interfered with the "success of the forces of the United States" was misreporting a speech by Senator La Follette prophesying that if the war were paid for by bonds the consequences would be "Brot-riots" (translated "bread-riots"), instead of "Brotreihen," (translated "breadlines").

The real significance of such a decision is put with finality by two dissenting Justices (Brandeis and Holmes):

 To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp ' as disloyal, opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

Even Mr. Justice Clark, who spoke for the Court in the Abrams case, found the results of the Schaefer case too much for him. Although to him the case did not assume the proportions it had for the two dissenting Justices, even to him it seems "simply a case of flagrant mistrial likely to result in disgrace and great injustice, probably in life imprisonment for two old men, because this court hesitates to exercise the power which it undoubtedly possesses to correct, in this calmer time, errors of law which would not have been permitted but for the stress and strain of feeling prevailing in the early months of the late deplorable war."

On March 8th the Supreme Court again sustained convictions under the Espionage act, this time of a number of insignificant members of the Socialist party, for distributing a pamphlet written by Irwin St. John Tucker (Pierce v. United States). There was no proof that the defendants knew the contents of the pamphlet. Moreover it was proved that the distribution was begun only after one of the ablest of the Federal judges had ruled there was no legal objection to the distribution of the pamphlet. Again the convictions were had for alleged "false reports made with intent to interfere with the operation and success" of the forces of the United States. Again some of the alleged false reports were trivial, and one of the alleged "falsities" was subsequently proven to be true. The chief falsity was the statement in the pamphlet that our participation in the war was determined "by J. P. Morgan's loans to the Allies." Without in any wise associating the defendants with knowledge of the falsity of the statement, the Supreme Court sustained the conviction on the ground that "common knowledge …. would have sufficed to show at least that the statements as to the causes that led to the entry of the United States into the war against Germany were grossly false; and such common knowledge went to prove also that defendants knew they were untrue."

The doctrine of constructive knowledge is surely a'monstrous doctrine to invoke in criminal cases. Mr. Justice Brandeis, again with the concurrence of Mr. Justice Holmes, makes this comment upon the Court's decision:

This so-called statement of fact—which is alleged to he false—is merely a conclusion or a deduction from facts. … The cause of war—as of most human action —is not single. War is ordinarily the result of many cooperating causes, many different conditions, acts and motives. Historians rarely agree in their judgment as to what was the determining factor in a particular war, even when they write under circumstances where detachment and the availability of evidence from all sources minimizes both prejudice and other sources of error. For individuals, and classes of individuals, attach significance to those things which are significant to them. And, as the contributing causes cannot be subjected, like a chemical combination in a test tube, to qualitative and quantitative analysis so as to weigh and value the various elements, the historians differ necessarily in their judgments. One finds the determining cause of war in a great man, another in an idea, a belief, an economic necessity, a trade advantage, a sinister machination, or an accident. It is for this reason largely that men seek to interpret anew in each age, and often with each new generation, the important events in the world's history.

But, even if the passages from the leaflet set forth in the third count could be deemed false statements within the meaning of the act, the convictions thereon were unjustified because evidence was wholly lacking to prove any one of the other essential elements of the crime charged The statement mainly relied upon to sustain the conviction—that concerning the effect of our large loans to the Allies—was merely a repetition of what had been declared with great solemnity and earnestness in the Senate and in the House while the Joint Resolution was under discussion. The fact that the President had set forth in his noble address worthy grounds for our entry into the war, was not evidence that these defendants knew to be false the charge that base motives had also been operative. The assertion that the great financial interests exercise a potent, subtle and sinister influence in the important decisions of our Government had often been made by men high in authority. Mr. Wilson, himself a historian, said before he was President and repeated in the New Freedom that: 'The masters of the Government of the United States are the combined capitalists and manufacturers of the United States.' We may be convinced that the decision to enter the great war was wholly free from such base influences but we may not, because such is our belief, permit a jury to find, in the absence of evidence, that it was proved beyond a reasonable doubt that these defendants knew that a statement in this leaflet to the contrary was false.

Nor was there a particle of evidence that these statements were made with intent to interfere with the operation or success of the military and naval forces. So far as there is any evidence bearing on the matter of intent it is directly to the contrary. The fact that the local refused to distribute the pamphlet until Judge Rose had directed a verdict of acquittal in the Baltimore case shows that its members desired to do only that which the law permitted. …

The fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved, if efforts to secure it by argument to fellow citizens may be construed as criminal incitement to disobey the existing law—merely, because the argument presented seems to those exercising judicial power to be unfair in its portrayal of existing evils, taken in its assumptions, unsound in reasoning or intemperate in language. No objections more serious than these can, in my opinion, reasonably be made to the arguments presented in 'The Price We Pay.'

Contemporaneously with these decisions, involving the Constitutional protection of freedom of speech and of the press, the Court rendered two decisions involving vast property interests. A minority of the Court (Mr. Justice McReynolds and Mr. Justice Brandeis not participating) immunized the Steel Trust and all its works. In effect is held that the Sherman law did not have teeth sharp enough for the most powerful and most uncontrollable of our trusts. The actual decision involved legal considerations about which lawyers may well differ. But ominous, indeed, are the considerations indicated in the opinion, which evidently influenced some, though not all, of the Justices concurring In it. The Court held, in effect, that the flexible quality of equity relief makes it appropriate to consider whether or not the public interest would ht furthered by granting the prayer of the government asking that conditions of legality be restored in the steel industry so far as it is controlled by the Steel Trust. The characteristic of equity jurisdiction thus Enunciated by the Court is undoubtedly sound. Nevertheless it was not applied by the Court in the case, of patentees who played a dog-in-the-manger policy by withholding patents from the public, and yet sought and secured injunctions against alleged infringers. In those cases the Court held that the injunction must issue as a matter of course in the protection of the property interest conveyed by a patent.

It is hard to reconcile the two cases, and still more difficult to yield to the Court's assumption that the state of trade, and the effect of the Count's decision upon foreign trade, are proper considerations of public policy for staying the Court's action in enforcing the Sherman law. The three dissenting Justices, speaking through Mr. Justice Day, explain the meaning of the decision in the Steel Trust case in these words:

As I understand the conclusions of the court …. they amount to this; that these combinations .... although organized in plain violation and bold defiance of the provisions of the [Sherman] act, nevertheless are immune from a decree effectually ending the combinations and putting it out of their power to attain the unlawful purposes sought, because of some reasons of public policy requiring such conclusion. I know of no public policy which sanctions a violation of the law, nor of any inconvenience to trade, domestic or foreign, which should have the effect of placing combinations, which have been able to thus organize one of the greatest industries of the country in defiance of law, in an impregnable position above the control of the law forbidding such combinations. Such a conclusion does violence to the policy which the law was intended to enforce, runs counter to the decisions of the court, and necessarily results in a practical nullification of the act itself.

 In the Steel Trust case the Court was merely construing a statute. Such a construction is, of course, remediable by future legislation. A totally different consequence follows from the decision of the Court in the stock dividend case. It took nearly twenty years to change by amendment the startling decision in the famous Pollock v. Farmers Loan & Trust Company case, decided by a majority of one, holding that an income tax is a "direct tax" within the constitutional provision requiring apportionment according to population. The Court now holds that the broad terms of the Sixteenth Amendment empowering Congress to lay taxes "on incomes from whatever source derived" does not permit taxing dividends representing profits, although it would apply to cash dividends issued for the purpose of buying therewith such stock dividends. As a matter of practice whether cash or stock dividends are issued, is a question of internal corporate management. Yet on such a technical distinction the Constitution of a powerful nation is made to turn. Again let members of the Court themselves—for four out of the five could not follow the metaphysical windings of the majority opinion—interpret the work of the Court:

If stock dividends representing profits are held exempt from taxation under the Sixteenth Amendment the owners of the most successful business in America will, as the facts in this case illustrate, be able to escape taxation on a large part of what is actually their income.

 How quickly this prophecy was fulfilled Is indicated by the volume of stock dividends that have been declared since the Court delivered this opinion on March 8th. Mr. Justice Brandeis continues "that such a result was intended by the people of the United States when adopting the Sixteenth Amendment is inconceivable." And the same conviction is expressed with pungency by Mr. Justice Holmes:

I think that the word incomes in the Sixteenth Amendment should be read in 'a sense most obvious to the common understanding at the time of its adoption.' .... For it was for public adoption that it was proposed The known purpose of this Amendment was to get rid of nice questions as to what might be direct taxes, and I cannot doubt that most people not lawyers would suppose when they voted for it that they put a question like the present to rest.

Res ipsa loquitur, the lawyers say. Surely these decisions speak for themselves. But they speak diverse and conflicting meanings, and their significance will depend, to a large extent, upon the prepossessions, the historical perspective, the legal equipment of the interpreter. It will not do to say that they prove the Supreme Court respects "property rights" more than "human rights,"for while Mr. Justice Day speaks with hot resentment against the Court's opinion in the Steel Trust case, he acquiesces in the Court's impairment of freedom of speech, and in the encouragement of conditions that make against freedom of thought. Nor do these cases prove the economic interpretation of the Supreme Court's work, for while Mr. Justice Pitney gives an interpretation to the Sixteenth Amendment which pleases the stock market and would delight the Schoolmen, he joins the minority in reprobating the organization of the Steel Trust and calling for its dissolution. Equally unsound is it to say, however, that the Supreme Court does not manifest a different attitude towards the acquisition and protection of property than towards other aspects of human liberty. No candid student of Supreme Court decisions can say that some of its members do not, unconsciously at least, illustrate the economic interpretation of history. But the causes are more manifold and more complicated than that analysis implies. Fundamental temperaments —whatever complex of qualities "temperament" may mean—play their part in the Supreme Court as well as elsewhere. Some men have imagination and some have not, whether they be Supreme Court Justices or writers of fiction.

The influences of these two radically different types of mind, the imaginative and the unimaginative, are revealed in all judicial history, and have played their part since the foundation of the Supreme Court. Naturally, the less imaginative the mind the more it is subject to the undertow of its own habits, its own experience, its own sense of what is right. Inevitably, therefore, intellectual limitations of the individual become constitutional limitations imposed upon the entire country.

The Supreme Court's power as the ultimate lawgiver puts too heavy a strain upon ordinary men. Since it is, as we are constantly told, an extraordinary power it demands extraordinary men to exercise it. We shall never face the issues until there is a general recognition of the fact that the Supreme Court in cases of public concern is not exercising ordinary judicial powers but powers that demand qualities deeper and different from those possessed  by ordinary judges. They are the deeper problems of statesmanship. They require for their disposition either men like Chief Justice Marshall, the late Mr. Justice Moody, or Mr. Justice Hughes, who came to the Court after wide and far-sighted experience in affairs; or that rarer type, men like Mr. Justice Holmes, who are gifted with imagination to transcend their own limited experience, Good faith and devoted public service are something but not enough for the functions exercised by the Supreme Court. Particularly in this day and generation Government must be sensitive and flexible to a shifting and complicated world, and the questions which the recent Supreme Court decisions insistently raise sooner or later face all institutions—Does it work? Is it worth more than it costs?

At least there should be an appreciation of the true quality of the issues which come before the Court, of the qualities of mind and the statesman's vision needed for their solution, of the means for developing an available source of supply for membership on the Court, and, if the present jurisdiction of the Court is to continue, of the needed safeguards against undue risks from the exercise of the power of the Court. It is idle to sneer. It is futile to find new cynicism in Mr. Dooley's observation that "the Supreme Court follows the illiction returns." Still less will it do to regard the Supreme Court as a sacred priesthood free from criticism. On the contrary, an alert and informed public opinion in regard to its work is indispensable to any comprehensive understanding of our national problems.