Farewell Appearance

This week nine historic oldsters for the last time this season parted the heavy curtains, filed between the marble columns, took their seats with a rustle of gowns in their leather chairs behind the mahogany bench in their temple-like Chamber of the Supreme Court of the United States. To the sentimental crowd which jammed the Court room to see this farewell appear ance, the Justices looked unusually cheer ful and healthy. Even dour Justice McReynolds was smiling as if he had swal lowed some kind of a canary. But all eyes were on Justice Willis Van Devanter, whose retirement was to become effective next day. He came in pink cheeked, with a lively stride, his gown open showing his white shirt front. As he took his seat, he nodded to one or two acquaintances below, then settled back chewing gum with un disguised contentment.

While Justice Butler read a decision Mr. Van Devanter leaned over and whispered to Chief Justice Hughes. In 20 minutes a few decisions of little public interest had been read, Court orders issued providing for hearing next autumn of cases challenging PWA's loans to establish municipal power plants, denying an immediate review of Electric Bond & Share Co.'s test of the Utility Holding Company Act, etc. For another 25 minutes the Justices sat while nearly 100 applicants for permission to practice before the Court were introduced, and sworn in in batches. Then the Court rose. Mr. Van Devanter stopped to shake the proud hand of a page boy. A year's work was done. The Justices of the Supreme Court disappeared between the curtains.

All nine of them had sat since the be ginning of the New Deal. They had been the centre of one of the three or four great constitutional crises which the U. S. has known. They, especially in the last year, had broadened the interpretation of the Constitution in a way that may permanently alter the functions of the U. S. Government. Having at times opposed the otherwise undisputed master of U. S. politics, they had been bitterly assailed. One or more Justices may, like Mr. Van Devanter, retire and be replaced before the Court meets in October. But these particular nine old men were The Nine Old Men to whom future history will refer.

How this famed Court appeared only a short time before its final session will be well preserved for history by the accompanying photograph. It is the second photograph ever taken of the Supreme Court in actual session, and the only one showing the Justices in their new chamber. The other, taken five years ago by Dr. Erich Salomon, made its first appearance in TIME Inc. publications as does this, taken last month by an enterprising amateur, a young woman who concealed her small camera in her handbag, cutting a hole through which the lens peeped, re sembling an ornament. She practiced shooting from the hip, without using the camera's finder which was inside the purse, before achieving this result.

In the foreground appears the bronze gate giving access to the enclosure reserved for counsel. In their favorite and ill-assorted chairs, the Justices relax in characteristic attitudes. At the left Justice Roberts, whose recent swing to the liberals has resulted in a series of decisions upholding the New Deal, pays close attention to the white-haired attorney (centre) arguing before the Court. Next comes conservative Justice Butler, hunched in his little chair studying a document. Liberal Justice Brandeis, 80, most ancient member of the Court, looks gauntly on. Conservative Justice Van Devanter, hearing one of his last cases, has his fingers before his mouth. The Chief Justice fingers his snowy mustache. Conservative Justice McReynolds stares meditatively at the fine ceiling of the court room (not shown in the picture). Conservative Justice Sutherland lounges at one side of his chair. Liberal Justice Stone has his hand partly before his face. Liberal Justice Cardozo leans wearily upon one elbow. It is 2:52 p. m.

The striking thing about this departing Court is that although in the first three years of the New Deal it invalidated law after law--NRA, AAA, hot oil, Guffey Coal--and upheld only one of importance -- devaluation and the cancelation of the gold clause -- it has not since last October overruled the New Deal on a single major case. Instead, it upheld in the past year: the arms embargo in the Chaco War, the new Frazier-Lemke Farm Bankruptcy Act, the Railway Labor Act, the Wagner Labor Law, the Social Security Law. Yet it was not until this winter that the President demanded that it be changed. A valedictory upon this historic Court was pronounced last week by a Washington wag who asked :

"Why shoot the bridegroom after a shot gun wedding?"

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