Dear Editor
DEAR EDITOR JUDICIAL RESTRAINT C P. Ives' analysis of the Supreme Court's two major tendencies (NL, November 14) sustains his support of the Frankfurter position. But I would like to indicate here...
...I suggest that people set up courts, in part, to have the judges at times restrain the people...
...New York City LLOYD MCAULAY...
...2. The rule of law means fair treatment apart from personal sympathies...
...But I would like to indicate here additional considerations which justify greater court intervention in those aspects of public life which affect our civil liberties and our civil rights: 1. Ives correctly states that repudiation of Blackstone's natural law views (that a judge like a priest has a pipeline to the divine) does require accepting the fact that judicial decision is a function of the judge's will...
...It explains why we seek to pick our "best" and "most just" men as judges rather than our most logical...
...4. The post-1937 Supreme Court view that the Constitution does not underwrite any particular economic philosophy does not and need not entail the view that the Constitution does not underwrite any particular political philosophy...
...One must look to more than what can be said in court opinions to determine what one considers a proper role for the judiciary...
...It is no shock that the IQ test is not our best criterion of judicial temperament...
...I suggest that a people who vote dry and drink wet may not always reflect their conscience in their legislation...
...Those who accept this are still left with the issue as to whether such self-restraint calls for avoiding a judicial position on the nature of our democratic political process as contrasted to avoiding decisions which reflect personal sympathy with particiular litigants...
...To know that error may occur leads to some such concept, but error is as likely when logic is involved as when emotions are involved...
...3. Thus, to be beyond popular control and bereft of special divine guidance is to call for self-restraint...
...5. The Frankfurter view emphasizes that the THE NEW LEADER welcomes comment and criticism on any of its features, but letters should not exceed 300 words...
...8. To accept Yntema's descriptive statement that judicial decision is reached after an emotive experience is in no sense to derogate the judicial process...
...7. Ives states, ". . . the Frankfurter judges are content to probe for and then enact the conscience of the people...
...However, Ives fails to point out that such does not require abandoning the attempt to have the outcome in any case depend on considerations broader or more general than the judge's sympathies with particular litigants...
...What New Hampshire does to Uphaus affects the political life of all of us and it is as much a part of making a federal democracy work for the Supreme Court to deal with the free speech issues raised by such a case as to deal with conflicting state regulation of interstate trucks...
...In broad terms a certain concept of democracy and freedom is implicit in the body of the Constitution and explicit in the Bill of Rights...
...major role of the Supreme Court is to adjudicate certain executive-legislative and Federal-State issues so as to assure that our Federal system works...
...To know that emotion is part of the judicial process in no way leads to any concept of judicial self-restraint...
...But, if we believe that people can rise above personal interests and sympathies then it makes sense to set up a system where certain individuals (our judges) are isolated from certain interests and given job security so that they can perform a particular kind of job...
...One aspect of that job is to apply the statutes and Constitution in a fashion that does take into account certain broad moral and political considerations...
...As an extreme goal that may be meaningless and unreachable...
...In fact, the activists quite properly give enormous presumption of validity to acts of that one legislature which is elected by all the people...
...There are many roads to his results and to a justification of an activist judiciary...
...9. Justice Black's rationale of his activist position is by no means the only possible rationale...
...As long as we are essentially a democracy, those who vote to repress dissent will give their allegiance to a judiciary which thwarts that vote...
...6. In fact, the Court activists are nearly as reluctant to overturn Congressional, as opposed to state or local, legislation as are the non-activists...
Vol. 43 • December 1960 • No. 49
