STILL THE BEST OF JUDICIAL WORLDS

...An appellate tribunal established under the Articles of Confederation set this aside and awarded all the money to Olmstead...

...And all things considered, this is still the best of judicial worlds of which we have any experience...

...Nevertheless the proposal actually accomplished its main objective...

...They include proposals like recall of either judicial decisions or offending justices...

...devices designed to circumvent objectionable decisions...

...And ordinarily the Supreme Court is not concerned with the way in which schools are conducted...

...No democracy could survive which blindly allowed an appointive judiciary to exercise supreme power of interpretation or annihilation of legislation...

...At the 1956 conference already mentioned the chief justice of Georgia's Supreme Court expressed concern over the current interpretation of the commerce clause...

...The Court, as a matter of fact, has now adopted the position that it will declare a statute unconstitutional, federal or state, only if it clearly conflicts with some express command of the Constitution and not, as had been the case earlier, because the law transgressed what a majority of the justices considered a proper legislative purpose and which they could, therefore, label a violation of that "due process of law" guaranteed by the Constitution...

...The Court has set aside many state convictions on the ground that the accused had been denied the assistance of counsel or that a confession had been extorted by improper means or that in some other way fundamental constitutional rights had been infringed...

...Here was an "interference" by the Court in local educational practices...

...Today the cry of states' rights is again dominant—and in fields as diverse as those of the criminal law and racial equality...

...It is harder to change decisions which interpret the Constitution than those dealing with Acts of Congress...

...The Court's decisions must constantly be tested in the forum of public opinion...

...on other occasions the federal government itself has taken the lead...

...Interposition" is as unconstitutional today as "nullification" was over a century ago...

...The very "separate but equal" doctrine which the South invokes as justification for its segregation policy stems from a Supreme Court decision interpreting that clause...

...The basis of the holding was that since the missionaries lived on an Indian reservation, the federal government had exclusive jurisdiction over them...

...The next conflict between the Court and the states ended in a victory for the Court because President Madison stood behind it...

...To forestall a possibly unfavorable decision in a case that had already been argued before the Supreme Court, Congress passed a law taking away the Court's appellate jurisdiction in such a case...

...Justice Stone alone dissented...

...Such action cannot be criticized on the ground that it constitutes interference with the Court or overriding it...

...Before discussing some of the pertinent instances it may be well to keep in mind the importance, indeed the necessity, of the role of the critic of the Court...

...But until there has been a constitutional amendment the Court's decision must be obeyed...

...The more recent decisions involving "released time" were also matters for the Court to pass on, not because it has any power over the schools, but because it has power to decide what constitutes an interference with religious freedom...

...On one occasion, when a tax statute was involved, Congress actually passed the amending resolution on the afternoon of the day on which the Court handed down its ruling...

...And nothing has since arisen to bring forth another such plan...

...Supreme Court has aroused resentment so deep as to result in efforts to undo its work and limit its power...

...If a person's constitutional rights have been invaded, his conviction should not be allowed to stand, and if the state courts are insufficiently alert to take care of such cases and the lower federal courts are forbidden to do so, the Supreme Court will have to...

...The Supreme Court was powerless to enforce its will, and President Jackson, who supported Georgia in the struggle, refused to do anything...

...Chief Justice Hughes gave it its death knell by advising the Congress that even the liberal Justice Brandeis opposed it...

...An immediate attempt was then made to get around that decision by the device of a law to accomplish the desired objective, but indirectly by taxation...

...When, however, instances continued to multiply, the Court ruled there was nothing unconstitutional about the disputed requirement...

...This challenge rested on religious grounds—the tenet that to salute any object was a form of idolatry forbidden by the Bible...

...Congress, with the help of Lincoln's Secretary of the Treasury, Salmon P. Chase, had passed a law permitting payment of debts in paper money...

...There was no further instance of serious resistance to any decision of the Court until our own time...

...This was Chisholm v. Georgia, and it decided that a state could be sued in a federal by citizens of another state...

...The views he expressed so eloquently soon became those of the majority...

...The controversy was between Olmstead, a Connecticut fisherman who had seized the vessel from the British, and an armed brig fitted out by Pennsylvania, which claimed that it had participated in the seizure...

...True, in 1832 the governor of Georgia and its courts refused to accept a ruling that a state law which required missionaries to take out a license was unconstitutional...

...The South should recognize that the Court had the right to change its views in this area as it has so often done in others and abandon the "separate but equal" doctrine...

...Let us then, against this background, consider some of the instances which have caused the problem...

...The character of those who have stirred protest has varied greatly...

...President Roosevelt no doubt felt frustrated by the circumstance that he had been in office more than four years without the opportunity of naming a single justice to the Court...

...There must be some authority that can say when a state has transgressed the limits set by the federal Constitution...

...Legislation to change both these decisions was promptly introduced, but failed of passage in the last Congress...

...But there has been no suggestion that anything be done to change the situation...

...While this development does not in form constitute an attack on the Supreme Court it may well lead to one since, if the proposed law is enacted, an unlooked-for result may be a large increase in the number of state convictions reviewed and reversed by the Supreme Court on direct appeal...

...So long, therefore, as the Court adheres to the present view there can be no talk of usurpation...

...It aroused profound opposition...

...Some of the recent rulings so made have, ironically enough, offended many liberals who had been among the most vociferous opponents of "government by judiciary...

...At first the Court ducked the issue by the device of not accepting the cases for review...

...But when, immediately afterwards, South Carolina proclaimed its defiance of the federal government by passing the Nullification Ordinance, directed at the increase of the central government's importance through the enactment of public improvement and tariff legislation, the President was moved to propose legislation which gave the executive arm power to enforce decisions of the federal courts...

...And he objected to the utterances of Southern public officers and lawyers that the Supreme Court needed to be curbed...

...Once in a while a specific decision will produce a specific correction by way of new legislation or a constitutional amendment...

...For no agency of our government is above criticism...

...Georgia, seeing the writing on the wall, pardoned the missionaries...

...Occasionaly change in the composition of the Court will produce a shift in decision more in conformity with current thought...

...The proper attitude toward the desegregation decisions was voiced by Justice Garwood of Texas at the annual conference of state chief justices held in August 1956...

...in Cole v. Young the Court decided that a Presidential order had gone beyond Congressional authorization in extending the loyalty-security program for federal employees to all positions regardless of their sensitive character...

...suggestions that the number of justices be increased or their qualifications limited...

...And everyone knew the proposal was motivated by a desire to outvote the reactionary group on the Court...

...Some efforts have succeeded...

...When its constitutionality was attacked, Chase had become Chief Justice of the United States...

...Perhaps some of us will better understand the attitude of states such as Virginia in the current struggle over desegregation if we recall the reaction of liberals in the early part of the century to the Supreme Court decision that Congress had no power to prohibit the transportation in interstate commerce of goods made by child labor...

...Before new cases involving the same question reached the Court, President Grant filled two vacancies and his appointments proved to be safe...

...Indeed, it has been charged that he sounded them out first...

...In 1937 President Roosevelt proposed that the number of justices be increased to offset those of advanced years still on the Court, many of whom had consistently voted to strike down one New Deal law after another...

...It seems the notion that the federal government is somehow foreign never dies out completely...

...And so it is with "equal protection of the laws," the provision of the Constitution under which the anti-segregation decisions have been handed down...

...Clearly it was the Court's function to pass on issues of religious freedom...

...Some years ago witnesses of Jehovah challenged the power of public school authorities to penalize them and their children because the children refused to salute the flag...

...It is only when the Court does strike one down which public opinion wants sustained that remedies can be proposed...

...The case was first tried in the state court, which divided the prize money...

...The governor appealed to the President, but Madison turned him down...

...He would restrict federal jurisdiction to the event of actual transportation, removing from it those activities which only "affect" interstate commerce...

...In spite of much dissatisfaction with other decisions at the beginning of the Nineteenth Century, especially those which struck down state laws designed to help unfortunate debtors, nothing was done about them...

...Nothing except an increase in abolitionist fervor resulted from the unpopular (in the North) Dred Scott decision...

...Sometimes special private interests have been involved...

...The decision so affronted state sovereignty that in less than five years the Eleventh Amendment, undoing it, was adopted...

...Pointing out that courts might err in constitutional as in other cases, he said: "But all this does not make the segregation decisions products of obvious judicial megalomania, as a distinguished Southern jurist says, in effect, that they were...

...To the surprise and consternation of the Grant Administration he cast the decisive vote against the law...

...South Carolina remained content with its fulminations...

...Several of the justices retired under the benefits of a law spurred by the President's packing plan...

...Since the first decision in the field came in connection with education, we hear much about the Court's usurpation in an area to which the Constitution makes no reference...

...And that has affronted the dignity of those courts...

...But, of course, it is entitled to argue that the new interpretation is wrong and to try to persuade the Court to revert to the old one—not that there is any likelihood of that happening...

...It is obvious, of course, that in both cases the Court was trying to find out what Congress had intended, and that if Congress disagreed with the Court's guess it could change the law so as to make clear what previously had been obscure...

...The legislature then decided to withdraw the militia, the process was served, and the money paid over...

...Then the federal grand jury indicted the militia general...

...The Thirteenth, Fourteenth, and Fifteenth Amendments can hardly be attributed to that decision and could not have been adopted but for the outcome of the Civil War...

...The Supreme Court held early in 1809 that the state law was invalid and directed enforcement...

...Yet attempts to put off the evil day of acceptance by efforts to circumvent are inevitable, human nature being what it is...

...And the Court accepted the curb...

...Whether a similar attempt to prevent a decision would be successful today seems questionable...

...But despite the Supreme Court's ruling that the conviction of the missionaries was improper they remained in jail...

...But he startled the country with his plan for ostensibly providing new justices to help the aging incumbents handle their work...

...So we come back to the dissatisfaction of many parts of the South with the Court's striking down of their laws compelling racial segregation...

...Almost at the very beginning of the Court's existence, in 1793, it rendered a decision which, to quote Charles Warren, eminent historian of the Court, "fell upon die country with a profound shock...

...All that the South can do is fight a rearguard action, hoping beyond reason that its device of calling public schools private will not share the fate of the Texas primary that wasn't supposed to be an election...

...But no device, short of a veto power like that which burdens the activities of the Security Council of the United Nations, will ever satisfy the disgruntled...

...Perhaps this is so because there is no device to force judges to strike down a law...

...For when another minimum wage case came before the Court, Justice Roberts, who had joined the four conservatives in the first one, found a technical procedural excuse for reaching a different conclusion in the later case...

...Talk of "nullification" or "interposition" is, therefore, out of place—rather, perhaps, out of time...

...During this same post-Civil War period there occurred perhaps the only successful instance of "packing" the Court...

...In our own time a "packing" plan failed...

...And so long as it persists there will be conflicts...

...There are, of course, other areas of dissatisfaction...

...In Pennsylvania v. Nelson the Court ruled that the federal sedition laws had so completely covered the subject that no state could punish seditious acts or utterances, at least unless these were clearly directed against the state rather than the nation...

...It is no longer possible to argue that in declaring Acts of Congress unconstitutional the Court has usurped power, and it never made sense to argue that, in a federal system such as ours, state laws could be immune from judicial scrutiny...

...Pennsylvania refused to accept a decision which confirmed a money award growing out of the capture of a vessel in the Revolutionary War...

...And only this year the Court held it to be a denial of due process for a city to dismiss a teacher merely because he had claimed his privilege against self-incrimination when questioned by a Congressional Committee...

...The militia general was convicted, given a light sentence, but at once pardoned...

...During the past twenty years the Supreme Court has become increasingly concerned with the protection of the rights of persons convicted of crime, and state convictions have not escaped its scrutiny and condemnation...

...Fortunately the character of the disgruntled changes with time and with the change comes also a change in the nature of the remedy proposed...

...Thus the ice jam was broken, never again to form...

...And Virginia could well take to heart the lesson then learned when this second law also was promptly declared unconstitutional...

...more often the states have been the objectors...

...The governor called out the militia, which surrounded the house where the defendants lived and prevented the U.S...

...Sometimes these decisions have been rendered on direct review of the highest state court's affirmance, sometimes in habeas corpus proceedings instituted in a lower federal court after a fruitless appeal to the state's highest court...

...This is, of course, a plausible way of presenting the South's case...

...Then it took nearly twenty years to get the corrective amendment accepted...

...Years later, when Olmstead tried to get the money and a federal judge directed that it be paid to him, the Pennsylvania legislature denounced the decision and directed the governor to prevent its enforcement...

...And this has been done frequently by the passage of amendatory legislation...

...power of declaring public policy...

...Fear that the Supreme Court might strike down parts of the Reconstruction legislation passed after the Civil War to deal with the Southern states led to the only direct instance of interference with the Court's jurisdiction...

...And obviously, that power must be vested in some federal agency...

...most have failed...

...Perhaps the justices hoped that the issue would die out...

...Yet no cry of usurpation arose...

...Therefore, whenever the Court hands down a decision which runs counter to the spirit of the times, it is not only appropriate but highly desirable that the people, through their elected representatives, take corrective action...

...Legislation has, therefore, been proposed which would seriously curtail the right of persons convicted in state courts to get relief from federal courts...

...marshal from serving the process...

...The Georgia chief justice also made the interesting suggestion that in cases in which state interests were involved there should be a special court on which the states would be represented...

...Thus the situation arises that an inferior federal court sits in judgment on a superior state court...

...And there have been instances where these lower federal courts have themselves ruled that the state conviction must be set aside...

...It is not surprising that none gets adopted...

...For the Constitution does not mention education...

...Again to quote Charles Warren: "Everything went on exactly as if the court had rendered no decision...

...So we continue in much the same way as we always have...

...Such efforts have taken on a variety of forms, ranging from simple amendment of the law or the constitutional provision the Court has supposedly misconstrued, to open defiance of its rulings...

...Two recent instances of statutory interpretation have made the problem newly current...

...For over half a century the South has acquiesced in rulings on school cases which were based on the equal protection clause and it is too late now to suggest that there is in education such a special local quality that the Supreme Court may not deal with it...

...Such were its decisions, rendered after World War I, striking down state laws which forbade foreign language teaching or prohibited private schools...

...Resentment against the Court had reached its peak in 1936 when it struck down a state minimum wage law, although this was no part of New Deal legislation...

...And even when constitutional change, such as the Bricker Amendment, is proposed in the belief it is needed to correct a judicial decision, the only question which should be discussed is the wisdom of the proposal as a matter of national policy...

...By the passage of amendatory legislation Congress is merely exercising its own preeminent OSMOND K. FRAENKEL is a prominent New York City attorney who has long been active in the field of civil liberties...

...The second present chief area of state dissatisfaction with federal interference is in the field of criminal law...

...The excuse, however, was flimsy and hardly warranted by the facts...

...Yet when a law suit challenges the manner in which a public school functions on the ground that some provision of the Constitution is being violated, the Court must, if it believes the issue to be substantial, consider and decide it...

...With the acceptance of the fact of federal supremacy and power the next period of our history naturally enough produced instances of dissatisfaction with judicial restraints on that power...

...prohibition against consideration of certain kinds of cases and against allowing a bare majority of the Court to declare laws unconstitutional...

...The Court has also dealt with educational problems when issues have been raised under the due process clause...

...But that is a story all its own...

...Until the income tax decision, a hundred years later, no similar instance occurred...