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PUBLIC POLICY
CHANGE SEEN
BY U. S. COURT

Conservative Pronouncement by Tribunal Paves Way for Rulings
By C. C. NICOLET
United Press Staff Correspondent

WASHINGTON, Dec. 13. (UP).

"The public policy of one generation may not, under changed conditions, become the public policy of another."

That sentence appeared yesterday in a United States supreme court opinion written by one of the conservative justices and concurred in by all but three members of the court.

It came in a case which had no connection with the recovery program or with any facet of the experiments of the Roosevelt administration. But at a time when the attitude of the supreme court is perhaps more important than ever before in the nation's history, and when every straw to indicate that attitude is being watched with equal intensity by proponents and opponents of the administration experiments, the sentence assumes importance.

Coming from Justice Brandeis, Cardozo, Stone or Roberts, the words would have less significance. But the opinion was written by Justice Sutherland. The only justices who dissented from the decision were McReynolds and Butler of the extreme conservative wing of the court.

Cardozo agreed on the decision but differed on some aspects of the opinion.

Sutherland usually is found on the conservative side when the court divides.

Whether the daring experiments of the Roosevelt administration are held constitutional or unconstitutional in the test cases which must go before the supreme court sooner or later will depend, it is recognized, upon philosophy rather than upon cold facts of law and precedent. There are no precedents for many of these departures from past custom.

The question to be decided will be basically whether the constitution is to be interpreted rigidly in accord with tradition, or elastically in accord with the view frequently expressed by Attorney General Cummings, General Hugh Johnson and other administration leaders. This is the view that the constitution was made for the people, not the people for the constitution; that it is plastic; that changing conditions require changing viewpoint toward law and private rights. It is the view taken so often by Former Justice Holmes and by Justices Brandeis and Cardozo.

Frequently Justice Stone has joined in decisions based on this philosophy; less often Justice Roberts and Chief Justice Hughes have joined in such decisions.

Since decisions involving the liberal philosophy of law often have been decided in recent years by five to four decisions on the conservative side, a liberal trend by one of the conservative justices might well be enough to uphold the recovery program.

To attempt to forecast how any supreme court justice would stand upon a specific question would be obviously absurd and impertinent. There may be phases of the recovery legislation which the conservative justices will uphold and the liberal justices will oppose. But decisions on individual emergency laws will be unimportant. The essential question is whether the recovery program as a whole is held constitutional. And this depends upon whether the majority of the court chooses to judge it wholly on the basis of tradition, or whether the majority feels that "the public policy of one generation may not, under changed conditions, become the public policy of another."

The case in which Sutherland made that statement yesterday involved a prohibition agent accused of aiding bootleggers. He was convicted in a court which refused to allow his wife to testify for him. Under common law, which is to say traditional law, a wife may not testify for or against her husband.

The Sutherland opinion held:

"Modern legislation, in making either spouse competent to testify in behalf of the other in criminal cases, has definitely rejected these notions, and in the light of such legislation they seem altogether fanciful."

Another quotation:

"The common law is not immutable, but flexible, and by its own principles adapts itself to varying conditions."

The conviction of the prohibition agent, John S. Funk of North Carolina, was reversed.

Justice Cardozo, concurring in the decision but not in the opinion, did not write a separate opinion explaining where he differed from the Sutherland reasoning, but judging from his general viewpoint, it is safe to assume that his disagreement was not on basic philosophy.