MISSED OPPORTUNITY
Wright, Charles Alan
Missed Opportunity THE COURT AND THE CONSTITUTION, by Owen J. Roberts. Harvard. 102 pp. $2. Reviewed by Charles Alan Wright OWEN ROBERTS is likely to be remembered in the history of the Supreme...
...The epigrams came later in Roberts' career...
...Dissenting in one case, in which the Court overruled an opinion he had written nine years before, Roberts got off the classic crack that Supreme Court decisions had become like "a restricted railroad ticket, good for this day and train only...
...to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former...
...It is unfortunate that Roberts must go down in history for nothing more than this, for there is much that can be said favorable to him...
...The second famous epigram was by Roberts, rather than about him...
...Reviewed by Charles Alan Wright OWEN ROBERTS is likely to be remembered in the history of the Supreme Court for two epigrams and one unparalleled bit of naivete...
...He was hardworking and able, qualities which have given him new stature by comparison with the Burtons and Vinsons who now decorate the Court...
...And to the extent that Roberts does stand for moderate, enlightened conservatism at its best, a considered and coherent statement of his views as to the proper function of the judiciary would be of wide interest...
...The conclusions which he reaches on these issues may or may not be sound...
...This refusal to recognize that the Court must often act as a super-legislature, or that the generalities of the Constitution may not always give the answers to specific problems, has been presented to a whole generation of law students as a horrible example of how unrealistic judges can be...
...A series of lectures at a great law school—which is what is printed here—offers a fine forum for a judge in the twilight of his career to pass on to younger men the benefit of his experience and insights...
...Instead he tells how the Court has acted in three particular areas involving conflicts between the state and the federal governments...
...but the method Roberts uses is so weak that the book is valueless to the lawyer or the general reader...
...The naivete came in 1936, when Roberts was usually to be found joining up with the Four Horsemen to make the majority of five which knocked out so much New Deal legislation...
...In writing the opinion for the Court which held the AAA unconstitutional, Roberts announced what he thought to be the proper role of the Supreme Court in constitutional cases...
...In 1937, at the height of the Court-packing fight, Roberts deserted the Four Horsemen, and voted in favor of the Wagner Act and other important New Deal measures...
...Roberts, stating the conservative position, was usually a lonely dissenter...
...By 1944 he had come full circle, or perhaps the times had advanced beyond him...
...Roberts had a perfect opportunity to make this sort of contribution...
...This was so effective in reducing the pressure to pack the Court that a Washington wag described it by saying: "A switch in time saves nine...
...But he doesn't do this...
Vol. 15 • December 1951 • No. 12
