The Supreme Court Schism
IVES, C. P.
By C. P. Ives THE SUPREME COURT SCHISM Differences in ideas of judicial review divide the Court's Justices LAYMEN CAN see more than ever that the Supreme Court in its recent term is having...
...His motto is judicial self-restraint...
...For these Justices the court was not the quiet center of the storm, as Justice Oliver Wendell Holmes once said, but the storm's very thunder-front...
...American history is not without instances in which the President, reflecting public opinion, was openly rebellious or silently obstructive...
...Even in these cases the statement above of the terms of conflict is somewhat over-emphatic and under-qualified...
...If there are areas, including that of civil liberties, in which the popular will is dull or non-existent, even in which the public should flame with zeal...
...If they merely decide in line with their own private notions of the good, the true and the beautiful (or the politically expedient), then no matter how elevated their intent, no matter how acute their insight, it still follows that their function is hardly more than legislative...
...The way public opinion gets written into law is by elected representatives of the people legislating in state legislatures or in the Congress, isn't it...
...By C. P. Ives THE SUPREME COURT SCHISM Differences in ideas of judicial review divide the Court's Justices LAYMEN CAN see more than ever that the Supreme Court in its recent term is having serious internal trouble...
...politically irresponsible body can accomplish what Congress was 'powerless' to achieve...
...in churchly matters, they still do...
...Among the more significant aspects of the Warren court decisions...
...Justice William Douglas is apt to agree and so...
...As Jackson saw the activists, they felt it was the function of the judge, especially the Supreme Court judge, to get out in front of public opinion and lead it to positions which it might never attain if left to its own somewhat slow and sleepy ways...
...They say so in many recent opinions at some length and occasionally with some heat...
...Certainly this sense of the law and of the function of judges undergirded our original notions of judicial review...
...Being denied the old-access to divine guidance, the Frankfurter judges are content merely to probe for and then enact the conscience of the people...
...This is the rationale, certainly it is the effect, of Justice Frankfurter's steady insistence on judicial self-restraint...
...Here was the source of that special prestige of courts, the root of that authority which commanded kings and legislatures just as it bent the stubbornest of private wills...
...My italics...
...It follows in Frankfurter's view that the court itself must never march ahead of the general public in its attitude toward any issue...
...It is the prudence of the Frankfurters to have seen all this, and it is the fortune of the country that, for the moment at least...
...not of men...
...Those touching certain types of worldly matters gravitated to a special group of functionaries, priest-like in that they still interpreted God's will as laid out in the Natural Law, but no longer priests...
...And once confirmed, he is for all practical purposes in for good...
...THE PARADOXICAL fact is, in brief, that the current Justices quarrel out of a common rejection of the concept of judicial process on which our constitutional law was originally erected...
...Clearly the law was no longer a revelatory guidance at the hands of quasi-priests out of their communion with a "brooding omnipresence in the skies...
...There are fastidious professional and philosophical reasons why this should be so...
...But right here many a layman will have trouble following the argument because it seems to assume that the Supreme Court has the job which back in high school civics class he learned was the function of the legislature...
...the fantasy of an aesthetically satisfactory system and harmony, consistent and uniform, which will spring up when we find the magic word of a rationalizing principle...
...The function of juristic logic . . . seems to be like that of language, [only] to describe the event which has already transpired...
...He would employ logic and principle, all right, but not in the old sense of alignment with divinity, not as a curb on private appetite and hunch, but merely to sugar-coat the hunch so as to tranquillize the disappointed litigant—including, say, the Congress, when statutes were invalidated...
...Enforcement of its writs depends almost wholly upon the willing obedience of the people: for though in theory the executive branch must apply the court's mandate...
...Yet—there remains one gaping difference between the judge, especially the Federal judge, and the legislator...
...If the judges are not quasi-priests...
...They were, of course, the judges...
...all had read English books and continental and classical books through the eyes of English editors and commentators...
...H. E. Yntema, a colleague of Judge Frank in the new ""realistic" jurisprudence, gave the candid answer: "The ideal of a government of laws and not of men is a dream...
...Not only is it ethically and morally questionable for judges to enforce their own private predilections by exploiting powers rooted originally in a mystique which they, personally, have long since rejected...
...And what did this new skepticism, this "bathing in cynical acid," this idea that there is nothing in the law except the policeman's club and the judge's will, nothing but what can be positively seen or felt—what did the new teaching do to the old ideal of a government of stable law...
...Frankfurter doubts that it is the responsibility of the court to supply the zeal—much less the flame...
...quite often, are other Justices, including Chief Justice Earl Warren...
...within their lights, they are justified...
...and Federal governments, and between executive, legislative and judicial branches of each, in that true proportion and delicate balance on which depends the whole Constitution of the United States...
...It has to be remembered that the men who put the constitution together in the first place were 18th-century Englishmen in everything but habitat...
...Many had been educated at English universities and schools or tolerable American facsimiles thereof...
...For a churchman like Blackstone, certain questions answered themselves: In the earliest times it was the priests who interpreted the will of God to man...
...then there is no more-than-worldly authority in their decisions...
...There are practical dangers to social comity when disappointed suitors are told it is not a government of law which has hurt them but the will, mandate, even the caprice of all too human yet wholly "un-get-at-able" legislators...
...He is acutely aware that the court disposes of no battalions of its own and lacks control of any purse...
...not fretful and capricious men...
...Frankfurter-like views seem to be gaining in the courts...
...To the lamp and pen as proper equipment for judges the activists add the flaming sword...
...in Frankfurter's view...
...One of Black's and Douglas' earlier colleagues, the late Justice Bobert H. Jackson, labelled them the "judicial activists...
...For one thing...
...Religion itself has ebbed...
...Rules and principles are empty symbols...
...Judges appointed for life whose decisions run counter to prevailing opinion cannot be voted out of office and supplanted by men of views more consonant with it...
...Yes, that is indeed the main quarrel between the two wings of the current Supreme Court, though it hardly appears in the more or less routine lawsuits which are the bulk of its business and only in the fringe of great civil liberty and other public-issue cases which rise to headline treatment...
...should not judges behave-with the humility becoming their human condition...
...They are even further removed from democratic pressures by the fact that their deliberations are in secret and remain beyond disclosure either by periodic reports or by such a modern device for securing responsibility to the electorate as the "press conference...
...The activistic views long propounded by Justice Black et al., are now [1957-58] gaining the ascendancy...
...Is the quarrel among the current Justices of the Supreme Court actually over a point of legislative tactics—whether they ought merely to reflect the people's will or whether they ought to push on out in front...
...Of the many things which have been said as to the mystery of the judicial process, the most salient is that decision is reached after an emotive experience in which principles and logic play a secondary part...
...For in case after case Frankfurter has warned that precisely because the court is beyond popular control vet altogether bereft of divine guidance, it must restrain itself: "The powers exercised by this court are inherently oligarchic...
...But the other school of thought in American jurisprudence jubilates in just this insulation of the judges against popular guidance and in the privileged sanctuary thus accorded private notions in judicial legislation...
...THIS VIEW OF the law is now pretty well gone among modern lawyers and even among laymen...
...Being no more than men...
...The one at whom they are apt to look most harshly is Justice Felix Frankfurter...
...The court is not saved from being oligarchic because it professes to act in the service of humane ends...
...Certainly it is true that Justice Frankfurter regards the function of the Supreme Court somewhat differently than do Black and Douglas...
...Sir William Blackstone (1723-80) first Vinerian Professor of Law at Oxford University, sometime justice in His Majesty's Court of Common Pleas and author of the magisterial Commentaries on the Laws of England...
...But in the great public-issue cases nearly all the modern judges and law professors think of the Supreme Court as largely legislative in its work, rather than narrowly and austerely judicial in the classic sense...
...For Justices Black and Douglas, however, and frequently for Chief Justice Warren and Justice William Brennan as well, the Frankfurter prescription of restraint and caution is conservative, even chicken-hearted, neglectful of the duty of the court and so dangerous to liberty...
...He was...
...A note of triumph . . . rings in Justice Black's dissenting opinion [in a recent case in which the majority upheld the Smith anti-subversion law in a Communism matter],' Professor Mason hails a recent decision as "a conspicuous example of how an unelected...
...The legislator is elected by the people for brief terms at the end of which he must appeal again to the people, and on his record, for another chance...
...exults Professor Alpheus T. Mason, "especially' in the civil rights orbit, is the unblushing way in which certain Justices take sides on burning issues...
...But the ordinary life of the law in England and in all civilized countries rested for centuries on the public sense that in the decision of the judges spoke the Natural Law, that the function of the judge was to discover this serene, timeless and awesome ordinance and that in voluntary submission to the judges the litigant was in fact bowing to a specialized version of the divine will...
...Of course there have always been political thinkers who believed vox populi, vox Dei—though the point is still disputed by old-fashioned believers in the Natural Law...
...There is also the overriding prudential reason suggested above—that if the court tries to go too far too fast it risks loss of public support and so a fatal erosion of its competence to perform its true role...
...As history amply proves, the judicial) is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace...
...In the law the modern mind was well stated by the late Jerome N. Frank, at the time of his recent death one of half a dozen of the most influential jurisprudential thinkers on the Federal bench: "Myth-making and fatherly lies must be abandoned— the Santa Claus story of complete legal certainty, the fairy tale of a pot of golden law which is already in existence and which the good lawyer can find, if only he is sufficiently diligent...
...Certainly it is the legislature which reflects the will of the people, isn't it...
...Its role is that of finding, refining and reflecting the popular will...
...But over the centuries a differentiation grew between various sorts of issues arising under the Natural Law...
...But the Federal judge is appointed for life, or during good behavior: the nearest approach to popular control of his appointment takes the sharply attenuated form of mere Senate confirmation...
...In other words, the judge was to make his decisions pretty much as he went along, on an "emotive" basis, without help from ancient principle and with ver) little humility in the sense of obligation to the Natural Law...
...All through the formative years of Anglo-American jurisprudence, judges were thought of as quasi-priests and their work as sacerdotal in a sense only less compelling than that of priests...
...Justice Hugo Black is inclined to think that several of the other Justices are negligent in defense of civil liberties, notably those of people mixed up with Communism...
...But certain somber consequences come from this new interpretation of the law...
...Especially in the law they had almost all their learning from a single great English scholar and commentator who was at the peak of his prodigious powers in their time...
...of course...
...HERE WE BEGIN to see the divergence between Justice Frankfurter and his activist colleagues in its true perspective...
...To be sure, the writs of the king's courts were enforcible by the king's sheriff and, in extremis, by his soldiery...
...This was the concept that was embodied in the old maxim about a government of law...
...We must stop telling stork-fibs about how law is born and cease even hinting that perhaps there is still some truth in Peter Pan legends of a juristic happy hunting ground in a land of legal absolutes...
...That role, indispensable in our system, is to mediate between state C. P. IVES, a member of the Baltimore Sun editorial board, is former political science lecturer at Gaucher College...
Vol. 43 • November 1960 • No. 44
