Decisions of the Supreme Court, 1931–32

Report Outline
Retirement of Holmes; Appointment of Cardozo
Changing Attitude of the Court in Railroad Cases
State Regulation of Private Business
Questions of State and Federal Taxation

Retirement of Holmes; Appointment of Cardozo

When the supreme court reconvened in October. 1931, much anxiety was expressed about Justice Holmes, who was then over ninety years old and whose health during the preceding summer had been poor. Justice Holmes himself showed a decided change. There was doubt whether he would stay with the Court throughout the 1931–32 term, and there was some speculation about his retirement. Then, amidst all these speculations, Justice Holmes rendered the first two opinions of the term. Somehow the notion that Justice Holmes would resign was incompatible with the words he uttered over the radio on the occasion of his ninetieth birthday, when he said: “But just as one says to oneself, the work is done, the answer comes, the race is over, but the work never is done while the power to work remains.” About the middle of the term, however, even Justice Holmes had to submit to the inevitable, and his parting word to the members of the Court was the saddest of farewells. Leaving the long and intimate association with the Court, he said: “For such little time as may be left for me I shall treasure it as adding gold to the sunset.” Thus ended his long and arduous judicial activity of over forty-nine years—twenty years on the Supreme Judicial Court of Massachusetts, and twenty-nine on the Supreme Court of the United States.

Appointment of Cardozo as Successor to Holmes

The President had a difficult task in choosing a fit successor to Holmes. In accordance with the traditions, which had already been violated, there were geographical considerations. For some sixteen years both Justice Holmes and Justice Brandeis were on the Court from the same state—Massachusetts. As far back as 1924, when Justice Stone was appointed, it was deemed necessary to appoint a successor from the western states. Later, when Chief Justice Taft resigned, one of the surprising things about the appointment of Chief Justice Hughes was that he came from the same state as Justice Stone. Upon the death of Justice Sanford, the President nominated Judge Parker, and one of the reasons justifying the nomination was that Parker came from a southern state. Justice Roberts, from Pennsylvania, was appointed after the Senate had rejected the Parker nomination.

Both the South and the West claimed the appointment of a man to succeed Justice Holmes. But geographical considerations were not sufficient. It was necessary to appoint a man who not only would succeed Justice Holmes, but one who would be worthy to be his successor. Demands were made upon the President to appoint a jurist who not only would be great in the field of law, but also one who would have an outlook on the problems of society similar to that of his predecessor. It took the President considerable time to decide on the nomination, and just as Cardozo's friends had abandoned the hope that the great Chief Judge of the Court of Appeals of New York would be the chosen candidate, he was nominated.