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Judging the Supreme Court

ISSUE:  Spring 1941

The Struggle for Judicial Supremacy. By Robert H. Jackson. New York: Alfred A. Knopf. $3.00. Our Constitution: Tool or Testament? By Beryl Harold Levy. Introduction by Robert H. Jackson. New York: Alfred A, Knopf. $3.00.

At a series of critical moments in American history, the judges have followed the election returns at too great a distance. Nobody is asking them to ride on the bandwagon, but public interest demands that they keep up with the procession. The two books here reviewed examine the record of the Supreme Court and make some commentary on its rightful place as part of the American machinery of government.

Beryl Harold Levy’s “Our Constitution: Tool or Testament?” is cast in the form of four brief biographies of Chief Justices Marshall and Taney and Associate Justices Holmes and Brandeis; there is a final chapter on the court today. The biographies do not quite come off, partly because the style is ornate and diffuse, and partly because the purpose of the profiles of the men is to give a profile of the court, and therefore both individuals and institution emerge with some missing features.

The main interest of the book is in the last chapter, which is subtitled “Wielding Vital Clauses.” It begins with a clarifying statement about the governmental interrelation between laws and men. We, the most legalistic of peoples, have too long believed that the structure of government could be self-maintaining, that a bell in the desert makes a sound when no one is there to ring it. Mr. Levy discusses the self-restraints which it is desirable for our constitutional bell-ringers to observe if the court is to ring the changes demanded by the general welfare.

The first is that the judges should approach a statute with a presumption of constitutionality, observing Marshall’s comment that “The question whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in doubtful cases.” A congressional statute, passed under the power to regulate the appellate jurisdiction of the Court, could strengthen this restraint by setting it forth in law and by requiring more than a majority of the Court to concur when laws dealing with economic problems are declared unconstitutional.

A further requirement of the judges is that they should be aware of changes in the meaning and use of vital clauses as these are affected by changes in society. The use of economic power in quasi-private form must be considered along with the use of political power in public form. The future of the taxing power will probably make this requirement specific.

Mr. Levy also makes some commentary on the current problem of the relation of the courts to the administrative agencies.

Attorney General Robert H. Jackson’s book, “The Struggle for Judicial Supremacy,” is a very clearly presented case study of the court as a representative of property interests. In reading it, we should not forget that when the Constitution was formed, only the Congress was controlled by the people. The Presidency was shielded from popular determination by the electoral college and the Court was even further removed from the reach of popular fervors. Did the Court fight of 1937 end in a lasting popular victory, or will cases like the Dred Scott case, the Legal Tender cases, the Income Tax cases, and the whole group of economic cases of the years 1935-37 again be decided in such a way as to nullify the popular will expressed through Congress and the Chief Executive? The parallel between the American Court fight of 1987 and the British controversy over the House of Lords in the years just before 1914 is a tempting one. In both cases, a liberal government had come into power. In both cases, substantive social legislation some years overdue was enacted. In both cases, the effort was nullified by that arm of the government primarily representative of property. In both cases, the tactic advocated by the government in power was to add enough new members to the obstructing body—peers or judges, as the case might be—to dilute the obstruction. In both cases, the obstruction was abandoned without the addition of new members to the Court or the House of Lords. Since that period, the issue has not again arisen in England.

Whether or not it will arise again in the United States depends, in the last analysis, on the concept of the Court’s function held by the members of the Court. Mr. Jackson’s chapter on “Government by Lawsuit” gives an admirable review of how the Court acts when it is functioning as an economic policy-making body.

The propriety of the Supreme Court acting as a body of law revisors, advisory to the President, was discussed and discarded by the Constitutional Convention. The Court’s subsequent refusal to render advisory opinions narrowed its accepted function still further. Yet when a statute is declared unconstitutional, the Court not only disposes of a “case” or “controversy,” it makes national policy. Mr. Jackson quotes a recent dissenting opinion in which Justices Black, Frankfurter, and Douglas said: “Judicial control of national commerce—unlike legislative regulations —must from inherent limitations of the judicial process treat the subject by the hit and miss method of deciding single local controversies upon evidence and information limited by the narrow rules of litigation. Spasmodic and unrelated instances of litigation cannot afford an adequate basis for the creation of integrated national rules which alone can afford that full protection for interstate commerce intended by the Constitution.”

Mr. Jackson adds: “Custom decrees that the Supreme Court shall be composed only of lawyers, though the Constitution does not say so. Those lawyers on the bench will hear only from lawyers at the bar. If the views of the scientist, the laborer, the business man, the social worker, the economist, the legislator, or the government executive reach the Court, it is only through the lawyer, in spite of the fact that the effect of the decision may be far greater in other fields than in jurisprudence. Thus government by lawsuit leads to a final decision guided by the learning and limited by the understanding of a single profession—the law.”

If the Court shares this view about its limitations as an economic policy-maker, the number of Federal laws declared unconstitutional in the future will be less than in the immediate past. Figures on the Court’s use of this power were submitted by Mr. Jackson to the Senate Judiciary Committee as part of his testimony during the Court fight: it was used six times in the seventy years prior to 1870, thirty-five times in the fifty years between 1870 and 1920, and thirty-one times in the sixteen years from 1920 to 1986,

Practically all of these cases were cases concerning property; the enlarged scope of Supreme Court action parallels the growth of corporations and the related extension of the due process clause. It is an interesting by-product of our government structure that our Federal causes celebres are property cases, not civil liberties cases. We have a Sacco Vanzetti case in Massachusetts, a Scottsboro case in Tennessee, but not a Dreyfus case in the nation. (Dred Scott, after all, was declared to be property.) Can the due process clause be reduced to its intended proportions? Can the Court accept the political process of accommodation and compromise as the normal means of peaceful change?

Clearly, if the Court maintained over a long period of time the attitude toward Federal legislation evinced by many of its members during 1935-86, the people, declared to be without power under existing forms of government, would exercise their constitutionally recognized function of revision. As Mr. Jackson points out in his final chapter, our frame of government is admirably conceived for operating in a society where a party of position and a party of movement make successive contributions to an agreed-upon general welfare. For obvious reasons, there will rarely be a clash between the party of position and the Court. But if the Court resists the party of movement beyond the tolerances of our government mechanism, it may find itself a powerless arbiter between revolutionary and counter-revolutionary forces. To prevent this, all three arms of government have a responsibility. It is the duty of the legislative and executive arms not to support economic illiteracy with the force of law. It is the duty of the Court to recognize the need for change when old forms have become a strait-jacket on society.


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