A Major Study of the High Court
LATHAM, EARL
A Major Study of the High Court The Supreme Court: Constitutional Revolution in Retrospect. Reviewed by Earl Latham By Bernard Schwartz. Joseph B Eastman ProfessoT of Ronald. 429 pp....
...the sun did eventually set for twenty years...
...Not only has the Court stopped acting like a super-legislature...
...He deals with the justices as thought they are mere judges when they are perhaps more important as policy-makers...
...The significant thing about the Court's cases (this is before the Watkins case) is that the Court has refused to invalidate Congressional power or to limit it...
...The complex materials in which these vast issues are embedded are handled with great skill, and the account of the Court's work in two decades is highly readable...
...Judges should be neither activists nor passivists, conservatives nor liberals...
...He thus takes a consistent "majoritarian" position on the issues which some judges and liberal commentators have tried to solve by using contradictory rationalizations...
...Like many works on the Supreme Court by lawyers, this one entertains certain confusions about the nature of this influential political institution, confusions which, here and there, emphasize the trivial, miss the significant, and tangle the analysis...
...He feels that the Rosenbergs, quite apart from the merits of their case (he supports the prosecution), were executed too fast—the judges should have stayed the execution so as to permit full argument on the point that they had been convicted under the wrong statute...
...Unfortunately for the principal thesis of the book, which doesn't take account of the most recent cases, the revolution seems to have stopped revolving, and self-effacement has yielded to a policy of self-enlargement in the last two Court terms...
...and the reader cannot help but be impressed by the range and importance of the issues it handles...
...These are arranged in appropriate chapter divisions dealing with Congress, the President, administrative agencies, the courts, the states, the individual, the war power, and the cold war...
...The principal value of the book, which is high, is the useful summary it supplies of the more important cases in the last two decades...
...it is a good thing that it has...
...6.50...
...The Constitution, says Schwartz, makes no hierarchy of the values it protects...
...It also puts him into opposition with Arthur Schlesinger Jr., who in 1947 (as he is quoted) urged that a "liberal majority" read its liberalism deliberately into the law, since conservative majorities in the past had done the same thing...
...Schwartz also supports the Court's decision in the Dennis case of 1950 because he feels that deference to legislatures should be the rule where the First Amendment is involved, as well as in all other provisions of the Constitution...
...and although he mentions the Court as an institution, he abstracts it from the family of institutions of which it is a part, and within which its behavior must be viewed...
...To Schwartz, partisanship and advocacy on the bench would appear to be a mischievous corruption of a distinguished and noble office...
...He finds it hard to reconcile the New York released-time case with the Illinois released-time case, as many others do...
...The organizing theme is stated at the start: Since 1937 "the Court's authority vis-a-vis the Congress has all but atrophied...
...And he rather suggests that the Court might have been a little more careful to protect the speaker from the crowd in the Feiner case, and a little less quick to permit the police to carry off the speaker just because members of the crowd were made hostile by his remarks...
...The author recognizes the contradictions of the Court in the economic and libertarian cases, in which doctrines of absolute right and preferred position have been used by some—Douglas and Rutledge, for example—to justify assuming that statutes that deal with property are probably constitutional, while those that deal with First Amendment freedoms are probably not...
...Had he done this, he would have weighed heavier the corporate concern of the Court for its position in the Federal trinity, and realized that it would not forever rest third in the rankings...
...The author sounds as thought he thought it had set forever...
...The untimeliness of the argument is like that of certain critics and commentators in the 1930s who saw the Court in twilight just before the judges burst, like novae, into a blinding flare of heat and light...
...It never should have been in the business of writing its economic predilections into the law...
...This sense of the deference that judges should show to legislatures infuses and justifies many of Schwartz's judgments...
...Political Science, Amherst College Like the music of Wagner, this book is much better than it sometimes sounds...
...The writing is clear, communicative and graceful...
...But the twilight image was not grossly inept...
...The assumption in every case ought to be that the statute is constitutional...
...The subtitle identifies the mystery that it explores...
...and against Douglas, whose views he seems to dislike greatly...
...all are equally important...
...The Japanese general, Yamashita, he thinks, was given a bad deal both in his initial trial and in the review of his case by the Supreme Court, although he thinks that the judges acted with absolute correctness in the cases of the Nazi saboteurs...
...But his permissiveness is not quite so generous where the Executive is concerned...
...There are some cases that the author wishes had not been decided quite the way in which they were...
...it is the famous judicial self-effacement of 1937 that constitutes the "constitutional revolution" which is viewed—as the author says—in retrospect...
...The history of the Court shows this amply...
...nor should it write the libertarian predilections of some of its current members into the law...
...In literate statement, the author has described the principal work of one of the most powerful institutions in the world...
...they should be self-conscious holders of aristocratic power, humble with a sense of the massive responsibility this entails in a political system dedicated to democratic values...
...Thus, the investigating powers of Congressional committees shouldn't be constrained by the judges, even where there are abuses...
...The only contrary precedent, the Kilbourn Case of 1880, is a bad one and supplies no authority for limiting the Congress (Warren relied upon this case in the Watkins decision...
...He would have the Court check the President and his Executive establishment even in the field of foreign affairs, where he thinks that the judges have gone too far in supporting unreviewed discretion to act...
...Talk like this lines the author up with Frankfurter, whom he seems to admire greatly...
...The author seems to be made uneasy by such talk, which does violence to his image of the Court as a judicial institution, giving deferential effect to the legislative will, legitimizing today's trend in the language of yesterday's truth, working marginally and intersti-tially, moving ahead slowly from case to case (one might say "judiciously") without blemish of partisan spirit or factional bias, cool, reasonable, reasoning and aloof...
...With an adequate view of the Court as a political institution, the author might not have hailed its retreat in the very dawn of a new offensive...
Vol. 40 • November 1957 • No. 45
