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The Court Is Reformed

While conservatives were pounding on the administration for opposing in the primaries Democrats who had saved the "independence of the judiciary" by voting against the President's plan for reforming the Supreme Court, the Supreme Court itself adjourned a term in which its decisions overwhelmingly favored the New Deal and showed an almost complete reversal of the tendency which had caused the President to attack it. Of the cases argued and decided on their merits, the government won 77 percent. This contrasted with the disastrous term of 1935-36, in which the government's percentage of wins was only 49. More significant than the figures is the fact that in almost every Important and critical case the government has been upheld. The National Labor Relations Board came through with almost a clear record, in spite of the power and prestige of its opponents. The TVA and the SEC were likewise successful. The only setback of importance was in the Kansas City stockyards case, and this was on a procedural point in a suit begun under the Hoover administration; the validity of the law in question was not fundamentally weakened, and it was not a New Deal law anyway.

This reversal cannot be attributed solely to the fact that because of retirements the President has had the opportunity to appoint two new Justices of more liberal views. Mr. Justice Black did not participate in some of the decisions, and Mr. Justice Reed was debarred from participating in still more, because of the lateness of his appointment and his absence when the cases were heard or his part in preparing them. Moreover, Mr. Justice Cardozo, one of the liberals of longer standing, was ill and inactive during a greater part of the term. The central fact is that the balance of power of the old Court has changed its outlook, or at least its tactics.

Does not this record supply good evidence that in spite of the loss of his battle in Congress, the President won the campaign? The Court has wisely understood the necessity of yielding to insistent popular pressure, as an agency of an essentially democratic government. In commenting on this fact, we may recall a few of the observations from our editorial "Curbing the Supreme Court," published February 17, 1937, immediately after the announcement of the President's proposal:

The Court is not an infallible and wholly independent agency of government dispensing absolute justice, but a body which, according to its lights, frequently makes political decisions...

In view of the blockade that the Court had erected against the action of government in dealing with the tasks thrust upon it in the modern world, something had to be done. 

This is essentially a political job, in the sense that it must spring from and emphasize the will of the people... Some effective way or ways must be found of registering a national desire that the Court act differently at the present time... The nature of the specific means is less important than the pressure itself. The very fact that a series of reactionary decisions led to a strongly supported proposal to pack the Court will of itself, no matter what happens as a result of this bill, exert a potent influence on the Court in the future. The learned Justices are bound to be a little more careful not to clothe their private prejudices in the Constitution, or to veto in the name of that broad document measures that the nation has decided it needs.