The Charlotte News

Friday, February 17, 1939


Site Ed. Note: We include the following piece by Hugh Johnson on the retirement of Justice Brandeis, appointed by President Wilson to the Court in 1916. He had replaced Charles Evans Hughes who resigned, uniquely among justices, to run for the presidency as a Republican, narrowly losing to Wilson in 1916; Hughes was later reappointed, as Chief Justice, by Herbert Hoover in 1930, replacing former President Taft, and remained Chief until 1941, retiring in favor of another Hoover appointee to be elevated by Roosevelt to Chief, Harlan Fiske Stone.

Justice Brandeis was to be replaced by William O. Douglas, providing Roosevelt his fourth Supreme Court appointment, all just since 1937, mooting the President's ill-fated Court-packing plan promulgated in 1937, in turn stunting the political spoils garnered from his landslide over Alf Landon in 1936.

"While Politicians Wrangle" tells us of the new "sink and float" method of ore extraction from the surrounding slag, that is while the hematite would sink in solution, the silicates would float, a kind of Trial by Ore-Deal, one might say--sort of like extracting the nuggets from some of these more abstruse old editorials. Some of these days, anyway. Like "The Power to Tax..." Chain Stores...

An Honor To the Bench

By Hugh S. Johnson

New York City--Justice Brandeis came to the bench in a storm of protest. He leaves it in a calm of universal affection and approval. He is one of the greatest judges produced in either English or American law. In spite of his advanced age his mind is as keen as ever and his experience on the bench and elsewhere seasoned even his great judgment more every year.

As a practicing lawyer he took a new approach to the presentation of cases to the courts. He took for granted that the judges knew the law. His briefs carried as much law as the case required, but principally they presented the economic or philosophical background that seemed to distinguish and decide every great cause he advanced.

Both as a lawyer and a judge he turned his face against legalism. This had much to do in reforming the legal profession in this regard even though that reform has not gone nearly far enough.


When he ascended the Supreme bench he retired into no sanctified vacuum where only law is known. I doubt any judge ever kept himself better informed about what was going on not only in government but in the country at large. Supreme Court judges do not go about "mixing" like a Rotary organizer. But Judge Brandeis does not have to go to the people. They come to him. He usually empties them of their thoughts and information in return for clarifying advice.

Above all, he knows business as well as the greatest of our captains of industry. In his law practice his advice was sought as much as an industrial expert as for his legal training. He distrusts bigness in business but that springs from no business-baiting prejudice. He thinks that there are very definite and not very wide limits to the capacity of even the best human mind to manage organizations well, and that therefore with bigness there necessarily goes both waste and inefficiency.


I can claim no close acquaintance with the great Judge but at two [indiscernible word] critical moments for me--once in the World War draft and once in NRA I went to him for help and advice and he gave it freely and gladly. In the first case, a rash and bigoted subordinate had slipped something into a published regulation which was irritating and highly prejudicial to the Jewish people. In the second, NRA was beginning to get into difficulties which finally killed it. I followed his advice in the first case and got [indiscernible word] toughest spot in the draft. I couldn't follow it in the second though I knew it was right.

In connection with this second, it never occurred to me that it would cause any criticism to relate that and I did so in a speech. Immediately the tom-toms began to beat--a Supreme Court Justice had given advice on a legal matter. Of course, this was utter nonsense, as I tried to make clear. Neither time I went to Judge Brandeis was any legal matter whatever involved. Had there been any such action, I would not have consulted him and he would not have listened. They were pure questions of administration. I went to him, as I have just said, as many industrialists went before he became a judge--to consult one of the best minds in the country on a question of common sense.

It is a pity that this great judge is gone from the government. It will be impossible to replace him.

While Politicians Wrangle

A new process for separating minerals from ores (called the "sink and float" method, but none of that now, if the little reader please) has been discovered. It reduces costs in one phase of the operation from $20 to 5 cents a ton, which figures out to be a net saving of $19.95 out of a twenty-dollar bill: and by making it profitable to re-work refuse ore piles as well as ore beds of lean mineral content, the process is expected to cause the employment of thousands of workers in new mining fields and immediately to give the nation a tremendous increase in natural resources.

The most interesting thing to notice about this discovery is that it is NOT the invention of the New Deal, that it was mentioned in neither party's platform, that it only happened to be disclosed at a time when Congress and the Administration were busily engaged in saving the nation. Sometimes we wonder if the country couldn't really go to town if the politicians would only unhitch the carryall and give the nag its head. What, after all, has the Government invented to make goods more plentiful and life more comfortable?

Curb For Irresponsibles

That seems to be a pretty good bill the Judiciary Committee of the South Carolina Legislature has under consideration for the reduction of accidents on the highways. Under its provisions a man who has once been adjudged responsible for an accident in a civil court and has judgment rendered against him for as much as $50, will be debarred from operating a car until he has satisfied the judgment and given reasonable evidence of financial responsibility in case of future accidents. Until the judgment has been rendered his rights will not be affected.

The plan promises to strike at one of the chief sources of danger on the road. It is common knowledge that often, though not always, the most reckless drivers are the owners of jalopies who do not have property enough to make a judgment against them worth anything. And the prospect of losing that immunity--of having to pay for the wrecks for which they are responsible or of being deprived of their valued right to operate their vehicles, should operate to instill a little more caution into them.

The Power to Tax...

There appears to be a growing sentiment in the Legislature, as well as in Congress and other states, against chain stores. Certainly there is a decided tendency to make them pay dearly for the right to do business, either by taxing them excessively according to the number of units in a system or by forbidding them, in effect, to sell goods cheaper than their competitors.

Representative Wright Patman, Texas Democrat and aforetime a loud advocate of prepaying the soldiers' bonus, is perhaps the key man in this flying wedge directed against chain stores. He is frankly determined to tax interstate chains out of existence and hand their stores over to the home folks to run; to wit:

"The largest food chain--which has about 15,000 stores in 40 states--might, for example, be restricted to 500 stores in one state. Its other 14,500 stores can be sold to local managers and local citizens, which will give that number of people a chance to go into business for themselves."

And a chance, Mr. Patman might have added, for many of them to go broke as innumerable grocers before them have gone broke.

But it is not the high mortality among former corner groceries that concerns us here so much as what appears to be a deliberate attempt by lawmaking bodies to hit chain stores below the belt without offering any excuse save that of a vague and never defined "public interest." A case in point is the bill already passed by the House in Raleigh prohibiting chain stores from taking a discount off the price of goods fixed by the manufacturer, and requiring retail stores that act as their own wholesaler to run up prices by a percentage to be designated wholesale cost.

This is doing by indirection what the Legislature would never dare to do overtly. If chain stores are actually inimical to public interest, let them be so defined and put out of business. But until that is proved on them, fairness dictates that they be fed out of the same spoon as their competitors. No worthy competitor can ask for more.

Knighthood Withers

A long time ago, the President, ethical sensibilities still tingling from his inaugural address, laid down a new rule, a Sir Lancelot kind of rule. It was that officers of the Democratic Party, such as national committeemen from the various states, would either have to give up their positions or cease representing clients before Governmental departments and agencies.

This appeared to establish integrity as a fundamental of the New Deal and was applauded quite enthusiastically until people began to realize that a tacit exception had been made in favor of the chief party officer of them all. At any rate, Jim Farley held onto both his jobs, one of which was with the Democratic Party, the other with the Government itself.

But the rule was promulgated, we say, back there when the idealism of the New Deal was fresh and free from cynicism. Things are different now, so different that the President probably will not give a second thought to the unabashed invention of "Chip" Robert, Secretary of the Democratic National Executive Committee and head of the Atlanta engineering firm of Robert & Co., that his 6% fees for a State of Georgia job had been earned in part by "contacting Federal agencies to obtain funds" for the project.

It doesn't follow, of course, that Chip got any special favors from these Federal agencies simply because he happened to be an officer of the Democratic Party, or even that he asked for them on that account. The equation was precisely the same as that the President, in the very beginning, would not tolerate.

An Elastic Code

The political code by which Cleveland County's Representative Odus Mull operates is marvelously elastic. Take this business of the mail-order liquor bill, for instance. Mr. Mull's code will not prevent him even to dally with the thought of it. He is immortally opposed to the State's receiving one single farthing in revenue from the demon rum. To be a party to any such iniquity would violate all that the Shelby man holds as sacred.

But bring up the absentee ballot, and the stern, unyielding Mr. Mull relaxes a little. He's agin it, all right--agin it in primaries, that is, which is to say that he is agin Democrats using it to swipe a nomination from other Democrats. "The most honest of us," he cheerfully confesses, "even the deacons in the churches, lose some of the standards that control us every day when we get to working in an election."

But when Democrats fight it out with Republicans, that's different. Mr. Mull would retain the absentee ballot for such occasions. Not, he explains, to enable the Democrats to steal from the Republicans and to prevent their stealing from each other, but because in November elections the Republicans have a part in supervising the polls and that assures fair administration of the election laws.

This would be a plausible argument, perhaps, except for one fact which Mr. Mull conveniently overlooks: that the State Board of Elections showed quite conclusively in its report on the absentee ballot that in certain counties it represents the margin of Democratic victories over the Republicans.

Unwelcome Aid

The outlook for the repeal of Massachusetts' law requiring a "loyalty oath" of schoolma'ams looks pretty poor from this distance. The law is a plainly foolish and dangerous one, and ought to be repealed. Were the thing enforced it would be quite impossible for a school teacher to hold any opinion on government which did not fit with the viewpoint of any given school board, however reactionary or however stupid its standards.

Governor Saltonstall has indeed indicated his sympathy with the movement for repeal. And the Legislative Committee on Education has given the repeal bill a favorable report. But the politicians who control veterans' organizations are fighting it bitterly. And what is far worse, the Communists have barged in to support it. Which, of course, lays the way wide open to the politicians to smear the whole movement for repeal as Red-inspired.

The Bolos are always doing that. If one supposed, indeed, that they were really out to help the causes they profess to champion, they would stand as the most obviously stupid crew ever heard of. For it must be plain to the simplest of them that their public support is calculated to prejudice any cause. But, in point of fact, of course, they aren't really interested in the cause--don't really care whether this law in Massachusetts is repealed or not. What they want is a chance to raise hell and yell their heads off about "persecution." Point of fact, they'd probably be dreadfully put out if the bill were repealed, for it would deprive them of too good an excuse for complaint.


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