520
The Green Bag
peka, and L. W. Keplinger, of Kansas City, opposed the granting of it. Mr. Olmsted asserted that there was a federal question sufficiently presented by the record to warrant the allowance of the writ of error. He insisted that the eight electoral nominees had fraud ulently obtained their petitions and that their names therefore should not appear upon the primary ballot. Mr. Jackson, on the other hand, urged that under the Constitution the method of choosing electors was specifically reserved to the legislature of the state, that all necessary relief could be had within the state, and that no federal question was involved. The Justices announced their decision in the evening. They granted the writ of error but refused to order the names of the disputed electoral nominees re moved from the primary ballots. In case the Taft forces were ultimately victorious, the names of the eight Roose velt electors, it was understood, could be excluded from the official ballot in November. The opinion of the Justices was, in part, as follows: The record discloses that the plaintiffs spe cially and clearly asserted in the state courts certain rights claimed to arise under the Con stitution and laws of the United States, and that these rights, by necessary implication and intendment, were denied by the two state courts.
Whether the rights asserted have a real basis in the Constitution and laws of the United States is the criterion by which we must deter mine whether the writ of error should be allowed. Under the settled practice, if the Justices to whom the application is made believe that the existence or non-existence of the rights as serted is involved in serious doubt, the writ should be allowed. We think that is the situa tion here. The questions raised do not seem to be de termined or settled by any previous decision of the United States Supreme Court. Some of the opinions of the court contain expressions which tend to sustain the contentions of the plaintiffs. Whether in view of the facts in the cases in which these expressions occur they should be regarded as deliberate and controlling, ought not to be determined otherwise than by the court itself. . . . As courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear, but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judg ment of the state court should be affirmed or the writ of error dismissed, would equal the injury which otherwise would ensue, we think no supersedeas or kindred order should be granted.
The final decision of the Supreme Court in the Kansas tangle will be of importance in judicial history not only because the case is itself unique, but also because it profoundly involves the status of Presidential electors.
JUDGES are not lawmakers. They are not administrators. Their duty is not to determine what the law shall be, but to determine what the law is. Their inde pendence, their sense of dignity and of freedom is of the first consequence to the stab ility of the state. To apply to them the principle of the recall is to set up the idea that determinations of what the law is must respond to popular impulse and to popular judgment. It is sufficient that the people should have the power to change the law when they will. It is not necessary that they should directly influence, by threat of recall, those who merely interpret the law already established. — Woodrow Wilson.
