Inasmuch as the big flip of March 29th had been accomplished by Mr. Justice Roberts, taking a long swing from one end of the tent to the other, landing upside down and with no one knowing how or why, the swing of April 12th was, as I intimated in the last chapter, forty-eight times as big.

That morning the sun rose as usual. It peeped over the Maryland and Virginia tree tops as innocent as a baby, and, about two hours later, it was shining up the Potomac River. On the District side were the Japanese cherry blossoms in all their merry harmony of color, as if there were no Supreme Court sharpening its axes to cut down the trees of law.

I did not realize that the great gunes of the Court were going to fire a salvo, and then, as they did behind Verdun, disappear. But unlike the guns of Verdun, five were to shoot one way and four another, all from the same emplacements, and all under the same flag, a jolly game of thundering at each other.

This is great stuff to the cannon, for they will get paid for life; they fire over each others heads anyway. But it is not so good for the 130,000,000 troops, since they never know what the cannon are going to do next nor where they are going to shoot. You get all located in one place and after it begins to feel natural, you get a judicial barrage laid on you. When that place is cleared out and the troops are in retreat, disorganized and leaderless, the cannon may divert their fire and let you go back to the old place—but they may shoot you out again if they change their minds.

I was on the floor of the House when the news came in about the first Wagner Labor Relations Act decision (there were five cases being decided together). The anti-lynching bill was up. For weeks I had roosted each Blue Monday like a Texas turkey to hear that decision. I had announced I would vote for the anti-lynching bill, and to skip over to the Court and miss a vote would certainly have brought upon my head the criticism that I had gotten scared, and run. So I waited, and, when I finished saying "Aye," I rushed over to the Court, where it looked as though the Court had gotten scared and run.

Going up the steps at a great rate and into the front door, I stumbled and nearly fell against the pistol of one of the guards. I thought of an article which had just been published a few days before in the Washington Evening Star, one of the principal friends of the Hight Court:

"A special police force of 34 "strong" men—all trained in marksmanship by the Coast Guard—protects the Supreme Court and its nine justices.

"Husky, blue-uniformed officers, with revolvers swinging in holsters at their sides, patrol the spacious Supreme Court Building night and day, keeping in constant communication with their headquarters through signaling devices at strategic points on their beats.

"Inside the four-story structure policemen stand guard at stations designated by their commander."

But the guard was a very pleasant fellow, and smiled. I got into the courtroom, where a few of the lawyers were still congregated, and I saw dead and dying judicial precedents lying everywhere on the battlefield. Former Senator Reed, diked out as a gentleman lawyer, was in a state of horror. He opined that the stock market would surely fall. For him, civilization, everything he held dear, was gone. No one had any more copies of the opinions. The newspaper men were getting their work done, and were not very sociable.

I found the old definitions of the Commerce Power had all been shot full of holes, although the Court kept some good strong ropes on it so they could pull it back when they pleased.

The decisions were a complete surprise. James A. Emery, general counsel of the National Manufacturers, had said concerning the Wagner Act: "It is plain to the layman as well as the lawyer that manufacture is not commerce." John L. Lewis, leader of the United Mine Workers and the Committee for Industrial Organization said that, knowing the Supreme Court, he had "given up hope" that the Act would be sustained.

But Chief Justice Hughes had fooled everybody. He went at it in a vigorous fashion. Smacking down the big lawyers for the employers, he said, "We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum." Oh!

Then, in a paean of praise for Congress, with greater emphasis, I was told, than he had ever before used on the bench, he shouted:

"When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?"

A newspaper man told me about Mr. Justice McReynolds. In the newspaper report sent in he said that McReynolds had registered "profound dissent, with evident feeling, resorting to emphatic gestures, and pointing his pencil at the crowd in front of him." But what he told me was a much better description. He said: "Old McReynolds was sore as hell, speaking like he seldom speaks, very loud, gyrating like you Congressmen and Senators do on the floor, and poking his pencil angrily at the crowd as he shouted his opinion, without reading it, and his speech was a good deal different from the written one."

There was no doubt about the report, for a week before I had heard Mr. Justice McReynolds do some shouting, in contrast to the low voice he usually uses. On that day Mr. McReynolds had gotten even with Mr. Justice Stone, and said something about "social predilictions," which balanced off with Mr. Stone's "economic predilictions."

It might be argued that the decisions should not have been an entire surprise, for had not the Court wobbled a little in the Washington minimum wage case of two weeks before, putting what few State female (not male) minimum wage laws there were back on the books? But the excuses in that case were such that had they been made anywhere but in the Supreme Court, they would have laid the people and the lawyers—even the Court Crier, Mr. Waggaman, who says he has been crying for twenty-six years—in the heavily carpeted aisles.

For the idea of the Government protecting labor, or regulating capital, or so much as touching either, had been out of the question: yea, verily, the Government has been a pariah which must not even touch the High Caste Corporation. As we found, walking through the Judicial Wonderland with Alice, the Guffey Coal case said all these things of commerce were mere local matters. Here was the Court saying the exact opposite, but not admitting it had ever been wrong before, and leaving the Guffey case like a Sword of Damocles hanging over the heads of the people.

What is the result? Not even the judges know what is constitutional now.

It is not now possible to describe the jumble of opinions on constitutional law. For if constitutional law is based on social, economic, or any other kind of prejudices—whatever the judges care to call their own prejudices—there is bound to be instability and unheralded and irresponsible change for business, labor, and life in general.

The truth is that, after the Wagner Labor Act decisions, it will be impossible to teach constitutional law in the schools of the country, and it will be impossible for lawyers to make any sense out of the situation. The fact that many cases were really reversed, notably parts of the NRA and the Guffey Coal case, but not admitted as reversed, leaves an opening through which to draw back and knock the next law over that is protective to labor or average human rights.

Since this is the situation and fight is in the air, with a deep shadow of confusion, and at the present time the change of a single mind for any reason whatever may change the lives of millions, let us study the personalities behind these nine minds. This is entirely fair, since their personalities and views now dictate the economic, political and social life of America.

First, we all know that the Four Guardsmen will act as a Battalion of Death against Congress on any measure which is in any way protective of human rights. They have demonstrated that for fifteen years and just lately reaffirmed their position in one of the Wagner cases, the one concerning the Associated Press. They held, in effect, that the AP should be as free as a bird in the forest of any labor law because such law would violate freedom of the press! Then when the Court freed Angelo Herndon from an obviously unconstitutional Georgia law, violating freedom of speech and press, the Four dissented, saying the law was constitutional, and that Herndon should serve his eighteen to twenty years. This was absolutely inconsistent as far as the Constitution was concerned, but quite consistent from the reactionary viewpoint. There is one thing positively certain, however, and that is, the Four Guardsmen will always oppose any liberal or progressive legislation. They will find the words.

Then there are three, Brandeis, Cardoza, Stone, who can always be counted on the progressive side. There is the Chief Justice, who is with the people on a fifty-fifty basis.

But the man nobody knows is Mr. Justice Roberts, who was named the Swing Man by the Press.

How can he change his mind so often? How so quickly? No one can find out, and he will not tell. When he is wrong he does not say so, but gets the Chief Justice to deliver the opinion, thereby pulling his judicial chestnuts out of the fire for him.

Is it because he loves power, and glories in exercising it in a mysterious way? Is it because he wants to be the Big Cat and play with 130,000,000 people in his paws, letting them free one day, and killing them off the next?

Or is it possible that he is a sort of sadist, a cruel fellow, who does not mind flip-flopping around? Or is it possible that he is just a big, good-looking fellow who can't make up his own mind, and blows hot and cold, and plays ducks and drakes with his own thoughts?

Some day Mr. Roberts ought to let us know. Some day he ought to be frank with the American people. For the mystery of silence, when you never know what the oracle is going to do, gets tiresome. The probabilities are that he is a very fine man—all his old friends say so. But is that the real question?

The important question is whether, if the Court changes its mind from time to time and no one knows what the law is nor what it will be, it should possess unlimited powers to declare unconstitutional those acts of Congress which violate no liberty, but only what the judges themselves taunt each other with as predilections?

Mr. Justice Holmes said one time: "I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." All of which brings us to a very important point. Since we are a nation, there must be a Supreme Court to settle State and national legal conflicts. But even there, when we talk of unconstitutionality, we tread on thin ice. For all of the mumbo-jumbo of the judicial wonderland can still be used to strike down the rights of the States, and the States have no protection whatever.

And I showed that in the Guffey Coal case and in the AAA case the States did not want the "rights" which the Court "gave" them; that they were a detriment to the States and to the people. It is like talking about the rights of the laborer to be free, to contract as he pleases—when he can't get another job and is at the mercy of powerful forces, with his own American Government powerless to offer him the benefit of the law.

It seems to me that this is a bad situation from either the liberal or conservative viewpoint. If we are to govern ourselves intelligently, we must have stability. We must know under what law we are working. The best way to assure this is for the people to enact their own laws, rather than to depend on their being dropped from on high.

On leaving the Court after hearing the Wagner Decisions, a friend stopped me.

"Quite a victory for Liberal forces, isn't it?" he said, and continued: "The Court seems to have changed to the progressive side!"

"Not such a victory as you think," I answered, "for we still have the mumbo-jumbo of confusing decisions. I am not at all convinced that a majority of the Court has turned liberal. In any event, liberal or conservative, wise or dumb, should they have all that power?"

As I left, the sun made the Japanese cherry blossoms surrounding the Congressional Library incomparably beautiful. I stood a long time and looked at the soft, delicate flowers. Then a Japanese proverb, taught me by a Japanese servant twenty years ago, came to my mind: "He says things with two tongues."