Conflict over the Court

...And something of the Attorney-General he once was is certainly showing in the police-minded anti-libertarian dissents, these past two terms, of Justice Clark...

...what worse one than the legislature itself...

...These judicial self-deniers did not foresee—or if they did, it did not faze them—that the legislative will might soon turn from liberal, in enacting social legislation, to repressive, in cutting down the civil liberties of citizens, as a Cold War bred "loyalty" and "security" laws and programs and oaths on every level of government...

...Others— for a while in a minority on the Court, now in the ascendancy—felt differently...

...the conservatives of two decades ago were expressing horror at the notion of tampering in any way with the sacrosanct judicial Holy of Holies...

...The self-deniers would describe themselves in precisely the same way—but their view of the Court's proper power and competence is considerably narrower...

...One outraged comment on this decision might easily have been written, or at least subscribed to, by any anti-civil-libertarian condemner of the Court today...

...theses—"judicial supremacy," "states' rights," "federal supremacy," and all the rest...

...The point is that, for all the pretense to the contrary, for all the precedent-monger-ing that poses as certainty sired by scholarship, these decisions are not guided by law...

...This has been true ever since the time of John Marshall—greatest concocter of political decisions in all our judicial history—and even before his time...

...3. Just about 20 years ago, in the mid-1930's, the Supreme Court handed down a series of significant, controversial, and usually divided decisions...

...Conflict over the Court by FRED RODELL As the United States Supreme Court once again hits the big front-page headlines, as Southern segregationists join forces with Northern non-believers in the Bill of Rights to try to cut the Court down to their own small size, as a Congress that cowers before these subversive—repeat, subversive—forces comes close on its last attempt and may come still closer on its next to ordering the Supreme Court not to hear this kind of case or make that kind of decision—it seems timely to set down in elementary fashion a few simple facts about the Court and its critics, old and new, that may help put the present uproar in better perspective...

...Here, then, are a series of simple ABC's about the Supreme Court which may help make the whole business clear: A—Unlike any other court in this country (and more powerfully than any other court in the world) the U.S...

...Central to this bitter debate was the key question whether the Supreme Court could properly order and force a state to do something it did not want to do...

...Instead of saying, realistically and frankly, that they did not like to see progressive laws struck down by judges, they wrapped their political preferences in the more resounding proposition that it was rarely, if ever, the proper business of the Court to thwart the legislative will, however ill-advised it might be, in any field...

...It so happens that in the 1850's it was the North—resenting and resisting the federal Fugitive Slave Act—that was touting and shouting for states' rights...

...Further, and far more importantly, where a constitution, whether federal or state, is designed in part to protect unpopular individuals or minorities—be they suspected criminals, Southern Negroes, Western Japanese, or Northern alleged Communists—from the legislative (or other) excesses of a lynchminded democratic majority, is it not at least more likely that such constitutional safeguards, like the Bill of Rights, will be more firmly applied by an untouchably above-the-ballots body than by any group that has to come up for re-election this fall or next fall...

...In legislation that affects the nation's economy—be it an antitrust law or an income tax, a TVA or an SEC—the majority, through its elected representatives, can usually be counted on to take care of the interests of a majority of the people, which is what democracy is supposed to mean...

...Yes, political preference, on a somewhat deeper and more thoughtful level than that of a Faubus or a J. Edgar Hoover, does indeed dictate many of the jugular judgments of the Justices...

...Judge Learned Hand, most famous and articulate living proponent of judicial self-denial, has gone so far as to dismiss the unqualified guarantees, in the First Amendment, of the freedoms of speech, press, assembly, and religion as "no more than admonitions of moderation...

...C—It is utterly absurd to praise or damn the Supreme Court—or to damn those who damn it or damn those who praise it—on such esoteric high-falutin' grounds as the sanctity of the Court or the desecration of precedent by the present Court or such abstractions of governmental theory as were mentioned before and which belong only in Ph.D...

...Thus, the recent civil-libertarian decisions have been sparked mainly by the activist group, headed by Black, Douglas, and Warren, with the self-deniers dissenting or dragging their heels...

...by such a belittling appraisal, it would indeed be silly to bother the courts with pleas for the protection of individual rights...

...Of course, the political decisions the Court makes are always wrapped in the language of the law...

...the truckling of the Vinson Court to "national security" at no matter what cost in the realm of civil liberties—every one of these epochs in the Court's past was made and marked by a series of decisions essentially political in nature...

...These decisions provoked all sorts of proposals to limit the Court's power or otherwise effect, by legislative means, a reversal in the trend of judicial doctrine—and the lines were pretty clearly drawn between liberals on one side of the issue and right-wingers on the other...

...But there is more than a little of the pre-New Deal New Dealing Senator in the views and votes of Justice Black...

...That notion is, indeed, at the root of the forces of disintegration that have been eroding the democratic ideal in this country...

...out of government, tend to fool themselves or try to fool others about the real reasons for the stands they take on big political issues...

...It would be as refreshing as it would be revealing if every politician, columnist, and legal commentator who has recently been expatiating about the Court were to climb down, stop the pontifical guff, and talk straight...

...Their politics may not be always so partisan as that of the five Southern Justices who directed the Dred Scott decision or of the Four Horsemen of reaction who, in the 1930's, stood blindly and solidly for business laissez-faire...

...In genesis—except as an ancient poser in political theory—this intra-Court dispute relates back to the Twenties and Thirties, when the Nine Old Men, judicially active as anything, were vetoing laws left and left, federal laws and state laws, laws that regulated business or taxed wealth...

...And equally political are the Warren Court's strong stand against segregation and its more mincing steps, in the past two terms, toward defense of the Bill of Rights—the very matters which have made the Court, as so often in its history, a center of controversy and debate...

...The author of these words was the greatest civil libertarian in United States history, the man more responsible than any other for the inclusion of a citizens' Bill of Rights in the Constitution— Thomas Jefferson...

...No, the apparent paradox of a switch on state-versus-federal powers by both Southerners and Northerners between the 1850's and the 1950's, or of a switch on up-the-Court versus down-the-Court by both liberals and conservatives between the 1930's and the 1950's, seems to be what it is not only if looked at on a semantic and hence a superficial level...

...But the whole purpose of putting a Bill of Rights (plus the somewhat supplementary Thirteenth, Fourteenth, and Fifteenth Amendments) into the Constitution was to protect certain basic rights of individuals and minorities against what might, at one time or another, be expressed in legislation as the majority will...

...Hoist with their own pet logic, they felt they must stick with judicial self-denial, even at the cost of upholding the legislative rape of individual freedoms...

...But before proceeding to the ABC's, here are a few appetizers—or teasers: 1. It was way back in 1803 that the Supreme Court, for the first time, ruled that something Congress had done was unconstitutional...

...Orval Faubus cares no more about "states' rights" in the abstract than does Thurgood Marshall...

...More on this point later...

...Somewhere in our federal system there must be a final arbiter of the frequently conflicting claims to power of the several states, or, more significantly, of conflicts between one or more states and the federal government...

...The activists, as their name implies, think the Court should act affirmatively whenever what they see as a wrong, which is within their proper power and competence to deal with, needs righting...

...But activist Justice Douglas has said of Judge Hand's interpretation that it "has done more to undermine liberty in this country than any other single force...

...Three paradoxes, in the light of the political line-up today, pro and con the Court...

...But in 1937 it was the left-of-center group that was demanding the Court be curbed and was backing, among other things, Franklin D. Roosevelt's "Court-packing" plan...

...People either like or dislike what the Supreme Court does in its big political decisions, and they have every right to express their likes or dislikes loud and often...

...The decisions themselves may at times be evil—and Dred Scott is the most obvious example—but so may the decisions of a Congress or a President...

...Scarcely...

...What better repository for the active defense of these rights than the judiciary, especially the Supreme Court...

...And the biggest political problem on which the Court is divided today is deep enough and basic enough to verge, at least verbally, on the never-never land of political theory...

...Supreme Court, in the bulk of its significant work, is not so much a court of law as a court of political decision-making...

...the South was demanding obedience to federal law as the Supreme Court laid such law down...

...the pro-railroad-baron rulings that marked the last third of the Nineteenth Century and came to a head in the Pollock case, outlawing (by five to four) the Democratic-Populist income tax...

...F—Despite a seeming inconsistency which is more verbal than basic, more superficial than real, it is both reasonable and politically sensible for a Supreme Court Justice—or anyone— to believe that the legislature should be left the last word (judicial self-denial) on economic matters but that the judiciary should stand supervisory guard (judicial activism) when civil liberties are threatened...

...a supreme court seems as reasonable a body as any to settle such political conflicts, even though the South today, like the North a century ago, may not like the way a particular conflict is settled...

...the judicial murder of the first New Deal and then the sudden change of judicial heart under the threat of F.D.R.'s "Court-packing" plan...

...Max Lerner cares no more about Court sanctity or supremacy than does David Lawrence...

...it is rather they that guide the law and point its future course—until, perhaps, that course is changed by another political decision made by a differently-manned Supreme Court on a later day...

...They are paradoxes only insofar as men, in or FRED RODELL, professor of law at Yale, is the author of "Nine Men: A Political History of the Supreme Court of the United States from 1790-1955," "Fifty-five Men: The Story of the Constitution," and, recently re-issued, "Woe Unto You, Lawyers...

...Does this habit, or tradition, of a split Court in the big cases then mean that the Justices themselves—like the politicians and commentators—react to the essentially political problems that come before them in essentially political fashion...

...Yet in those states where judges are elected instead of appointed, the caliber of the courts and the trend of judicial decisions have not been noticeably different or more democratic...

...But of course, too, the dissents from those decisions—and it is the rare political decision that does not carry a dissent—are also wrapped, sometimes more persuasively, in the language of the law...

...if the segregation decisions had gone the other way, Faubus would be touting "the law of the land" as laid down by the Court and Marshall would be, if not flouting it, flaying it...

...B—There is nothing inherently evil about the power of the Supreme Court to make political decisions...

...that only a more democratically chosen group should be entrusted with such vast power— and the argument has considerable validity as applied to several fields of public, or political, law...

...E—The current Supreme Court is split—between what are sometimes called "judicial activists" and, opposing them, apostles of "judicial self-restraint" or "judicial self-denial...

...They are paradoxes only insofar as such mouthfuls as "federal supremacy" or "judicial supremacy" or "legislative prerogative" or "states' rights" (or, for that matter, "interposition" or "nullification") have any real meaning or any rallying appeal in the abstract— which they don't...

...It was spectacularly true during the splintered-decision decade of the Roosevelt Court...

...This was true in Dred Scott, true throughout Reconstruction and expansion to the West, true in the Pollock income-tax case, obviously true in the years when Holmes and Brandeis were dissenting, true in almost every case when the Court was knocking down the New Deal, and true again when the New Deal was later upheld...

...Suffice it here to repeat that the political power held by the Supreme Court is not per se an evil thing...

...the stubborn stand of the Taft Court against social legislation, which made Holmes and Brandeis famous in dissent...

...This commentator, no Court idolater, takes his stand with Douglas simply because of a strong, personal, essentially political belief in equality for Negroes and civil liberties for everyone...

...D—Despite its rare unanimity in the desegregation cases, the Court itself, for the past century at least, has usually been divided when it has handed down its big political decisions...

...It is arguable that decisions so vital to the nation as these ought not be left in autocratic hands of nine life-appointed men...

...Mar-bury v. Madison, subtly proclaiming the Court's power to veto Congress, and all the famous "Constitution-expounding" cases that followed while Marshall was Chief Justice...

...2. In 1857, the year of the Dred Scott decision, and for several years before and after, the slave-holding South and the abolitionist North carried on a verbal battle—until they went to war in earnest—over states' rights against the supremacy of the federal government...

...The point is that they are only deceiving themselves (and other like-minded self-deceivers) when they try to camouflage their simple, normal, political reactions to results in pretentious palaver about propriety and principle...

...It is true today, most meaningfully in the recent spate of pro-Bill of Rights rulings—Jencks and Watkins and Kon-igsberg and Yates and Nelson and Cole and the others—that, along with the desegregation stand, have put the Court back in the spotlight and opened it to controversy, criticism, and schemes of control...

...And that notion, not the sanctity or unsanctity of the Supreme Court, is what today's shouting, pro and con the Court, is all about...

...what it said was: "The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please...

...Out of resistance to this reactionary tide in constitutional law—and out of the dissents, sometimes over-read, of Holmes, Brandeis, and Stone— there arose almost a cult of advocates of judicial self-denial...

...Here is where the crux of the current controversy about the Court, which boils both off and on the Court, comes full circle...

...the agrarian, anti-commercial decisions of Taney's tenure, up to and including the Dred Scott debacle...

...if you don't believe it, look at what both of them were writing about the Court back in 1937 as compared with what they are saying today—and laugh...

...The answer is a qualified Yes...