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Cleg O Supreme Court GU By Merlo Pusey Nicbol Roeen Legislation From The Bench .Mohr III have been included. In the pre- MOST OF THE controversles. depresslon days Congress had that have swirled around the been negligent in regulating the. Supreme Court have concerned relationship between. holding Its exercise of leglsiative powers. companies and nstional banks. It . Joe*s. The most infam- had put the stockholders of ous decision the. "every national banking associ-j court ever made stion" under double labillty. But power. In 1914, Congress problem by injecting new me. --that In I the nothing could be found in the amended the Sherman Act by the ing into a 50-year-old statute. Dred Scott case statutes applying the ume obli- Clayton Act and agatn defined Now this policy is just as r. preceding t h e gation 'to the stockholders of the meaning of "commerce" rehensible as was the old cour Civil War - was State-created holding companies without including insurance. The habit of choking of legislat an adventure in owning bank stock. Congress had sponsor of the bill Representa- enactments which it did not li. simply not legislated on the sub- tive Webb, told the House spe- "To force the hand of Congres legislation from the bench. There ject, and when it did take the cifically that "insurance compan- said Justice Jackson, dissentis have been many matter up later it chose s very ies are not reached, +s the Su- Instances since. different means of dealing with preme Court has held that their of the judiciary than to tie ! It was the charge bank-holding companies. contracts or policies are not in- hands of Congress." The judi PUSEY of court-room Yet a bare majority of five terstate commerce." pendulum has swung from 0 leglslating that won support for justices held the stockholders of These facts clted by the dis- extreme to the other. A major senting justices seem to me to be Delaware holding company of the court is still legislatii President Ropsevelt's attack on the court in 1937. Now again the pretty conclusive evidence that subject to double liability but with a different set of pre in Congress had no thought of sub- spite'of Congress' inaction. Ap- lections. And it will doubt! sharpest barbs fying in the di- rection of the Supreme Bench parently they acted on what the Jecting insurance companies to continue to do so as long as 1 the Antitrust Acts. .But the law President insists on giving it are pointed by the same accusa- layman would call general prin- makers on the Supreme Bench majority of crusaders instead tion. ciples--that is to say they voted were apparently not willing to to sock the holding company, judicial-minded men who The court has always resented wait for a slow-motion Congress willing to interpret the law ? this charge. Regardless of how law or no law. to speak for itself. They crude- jectively and let the chips f far they go in stretching the law The tendency to legislate from ly tried to meet a legislative where they may. to accomplish their purposes, the the bench came to full Aower in judges insist that they are merely the case of theSoutheastern interpreting the law and the Underwriters Assoclation. So far Constitution as they stand. And as I can see, the real issue was the best legislators on the bench not any shenanigans of the fire- do not hesiate to denounce the insurance companles or whether conclusions of their colleagues or not the business of insurance as judicial lawmaking when they affects interstate commerce suf- are in disagreement. Only a ficient to justify regulation by month ago.for example,Justices Congress. Apparently real abuses Douglas and Biack, who are the have crept into some of the court's leading law-makers at agreements insurance companies present accused the majority in have made across State lines. the Saylor case of writing "into The court was unanimously of the law what Congress struck the view that Congress may out 50 years ago." reach these interstate aspects of But if that was a case of the insurance business If 1t I stretching the law, it was a com. chooses to do so: It split 4-to-3 paratively minor one. What is o! chieny on the question of wheth- Indnitely greater concern is the er Congress had attempted to do disposition of the court to add to so in passing the antitrust acts. or detract from the law in im- portant matters of public policy. Until recently this tendency was CONGRESS PASSED the Sherman Act' long after'the Su- manlfested chlenly in stripping preme Court had sald that in- down statutes to something less than Congress had enacted. surance Is. not Interstate com- The merce. The House committee ? most notable example was the In'charge save assurance that - INDEXED emasculation of the Antiracket- the bill was not intended tering Act in order to protect "to occupy doubuul grounds" and : NOT RECORDEI unionlzed truck drivers who had .expressed the vlew thst "Con. established : monopoly by the 87 jUL 8 1944 gress has no authority to deal, slusging method. Renerally, with the subject (re c+3 straint of trade) within DURING ITS LAST tertn the the States." Later Congreu turned : court went further than it had down many requests to leglelate previously gone tn bridging over S interstate transactions in in. zaps in the Iaw and extending becaase Its judiciary old statuter nto covrt ltitua io t Ittees believed thyt . p