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Judicial Self-Restraint

Published online by Cambridge University Press:  02 September 2013

John P. Roche
John P. Roche
Affiliation:
Haverford College
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Extract

Every society, sociological research suggests, has its set of myths which incorporate and symbolize its political, economic, and social aspirations. Thus, as medieval society had the Quest for the Holy Grail and the cult of numerology, we, in our enlightened epoch, have as significant manifestations of our collective hopes the dream of impartial decision-making and the cult of “behavioral science.” While in my view these latter two are but different facets of the same fundamental drive, namely, the age-old effort to exorcise human variables from human action, our concern here is with the first of them, the pervasive tendency in the American political and constitutional tradition directed towards taking the politics out of politics, and substituting some set of Platonic guardians for fallible politicians.

Type
Research Article
Information
American Political Science Review , Volume 49 , Issue 3 , September 1955 , pp. 762 - 772
Copyright
Copyright © American Political Science Association 1955

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References

1 See Wheare, Kenneth C., Federal Government, 3rd ed. (New York, 1953), pp. 60–68Google Scholar for a discussion of the application of judicial review in other nations. The British formerly utilized “impartial” bodies extensively in administration, but in recent years there has been a trend towards subsuming all administrative agencies under the direction of politically responsible ministers; see Robson, William A., “The Public Corporation in Britain Today”, Harvard Law Review, Vol. 63, pp. 1321–48 (June, 1950)CrossRefGoogle Scholar. The French, in their postwar nationalization acts, tried to excise politics from the operation of the state industries by establishing functional boards composed on the basis of interest representation; see Einaudi, Mario, “Nationalization in France and Italy”, Social Research, Vol. 15, pp. 22–43 (March, 1948)Google Scholar, but apparently Truth was as elusive as ever; see Sturmthal, Adolf, “The Structure of Nationalized Industries in France”, Political Science Quarterly, Vol. 67, pp. 357–77 (Sept., 1952)CrossRefGoogle Scholar. The failure of a classic effort to take economics out of politics was chronicled by Rogers, Lindsay and Dittmar, W. R., “The Reichswirtschaftsrat: De Mortuis”, Political Science Quarterly, Vol. 50, pp. 481–501 (Dec., 1935)CrossRefGoogle Scholar.

2 See Leiserson, Avery, Administrative Regulation, A Study in Representation of Interests (Chicago, 1942)Google Scholar; Herring, E. Pendleton, Public Administration and the Public Interest (New York, 1936)Google Scholar; Roche, John P. and Stedman, Murray S. Jr., The Dynamics of Democratic Government (New York, 1954)Google Scholar, Ch. 12.

3 The classic statement of this position was Haines', Charles G.The Role of the Supreme Court in American Government and Politics, 1789–1835 (Berkeley, 1944)Google Scholar. William W. Crosskey has recently thrown some semantic fagots on this dying fire, Politics and the Constitution, 2 vols. (Chicago, 1953)Google Scholar. It might be useful to point out that under the American system of checks and balances the Supreme Court does not have the last word. If the Court abuses its prerogatives, as it did in the income tax case, the power to amend the Constitution serves as an antidote. This was particularly true in the formative years of the Republic when the Court's decision in Chisholm v. Georgia, 2 Dallas 419 (1793), was immediately countered by the Eleventh Amendment; see Hollingsworth v. Virginia, 3 Dallas 378 (1798), for a discussion of the impact of this amendment on judicial procedure. Today the amending power has become quite difficult to implement (but see the exceptionally rapid passage of the Twenty-second Amendment); however, at a time when senators were chosen by state legislatures it was highly probable that an amendment receiving two-thirds of the votes in the Senate would reflect directly the sentiments of the sovereign states.

4 See the recent statement by Professors Hart and Wechsler that “the grant of judicial power was to include the power, where necessary in the decision of cases, to disregard state or federal statutes found to be unconstitutional. Despite the curiously persisting myth of usurpation, the Convention's understanding on this point emerges from its records with singular clarity.” Hart, Henry M. Jr., and Wechsler, Herbert, The Federal Courts and the Federal System (Brooklyn, 1953), p. 14Google Scholar.

5 See the fine study by Twiss, Benjamin, Lawyers and the Constitution (Princeton, 1942)Google Scholar.

6 The first major effort was made by the Jeffersonians when they impeached Justice Samuel Chase for his bitter displays of anti-Jeffersonianism on the bench. Although the attempt failed to gather the necessary two-thirda vote in the Senate required for conviction—and a constitutional amendment which would have made federal judges removable by the President upon joint address by Congress also died aborning—the Supreme Court went into judicious hibernation; see Haines, pp. 264–65. The Dred Scott decision brought from Republicans demands that the Court be curbed, including the famous statement by Lincoln to the effect that while the Court's views were interesting, they were not necessarily binding upon the coördinate branches of government; see Warren, Charles, The Supreme Court in United States History, 2 vols. (Boston, 1947), Vol. 2, p. 331Google Scholar. In the post-Civil War period, the demand was taken up by the agrarian radicals and later by the Socialists, and the Progressive Platform in the 1912 election contained an endorsement of recall of Supreme Court decisions by referendum. The most recent struggle, that between President Franklin D. Roosevelt and the “Nine Old Men,” concerned the right to add personnel to the Court rather than to impeach the content of judicial decisions qua decisions. Since the segregation decision of June, 1954, some new precincts have reported: southern statesmen, allegedly pillars of conservatism and the rule of law, have been denouncing what they call the Court's “political decision,” and one of the candidates for nomination in the 1954 Democratic gubernatorial primary in Georgia ran on the slogan: “Abolish the Supreme Court!” He lost, but before too much consolation is drawn from this defeat, it should be added that the winner seemingly favored the abolition of the whole national government if necessary to prevent desegregation.

7 Ex parte McCardle, 7 Wall. 506 (1869). See Warren, Vol. 2, pp. 473–89, for a discussion of this famous judicial emasculation.

8 For this expressive phrase, I am indebted to the analysis of Finkelstein, Maurice, “Judicial Self-Limitation”, Harvard Law Review, Vol. 37, pp. 338–64 (Jan., 1924)CrossRefGoogle Scholar.

9 See Roche and Stedman, Ch. 10, for a brief attempt to explain why the United States courts have remained so autonomous.

10 Promulgated by Justice Brandeis in his concurring opinion in Ashwander v. T.V.A., 297 U. S. 288, at 345–48 (1936).

11 Most notably in the trial of Callander for sedition in the Virginia Circuit Court. Haines, pp. 163–65, distinguishes this case on the ground that the Jeffersonian lawyers asked the jury to declare the Sedition Act unconstitutional, but fails to point out that they used as precedent two Virginia cases in which judges had declared Virginia statutes violative of the state constitution. Tactics in this case, with Samuel Chase on the bench, obviously precluded asking the judge to hold the law null and void; see Wharton, Francis, State Trials of the United States during the Administrations of Washington and Adams (Philadelphia, 1849), pp. 709 ffGoogle Scholar. Chase declared the Sedition Act to be constitutional, and further asserted his jurisdiction to make this finding. He made the same assertion in Cooper v. Telfair, 4 Dallas 14, at 19 (1800). The abolitionists later made a name for themselves by urging the Court to hold the Fugitive Slave Act unconstitutional while simultaneously maintaining that states'-rights forbade judicial enforcement of the statute; see tenBroek, Jacobus, The Antislavery Origins of the Fourteenth Amendment (Berkeley, 1951)Google Scholar, Ch. 2.

12 Jackson, Robert H., “A Presidential Legal Opinion”, Harvard Law Review, Vol. 66, pp. 1353–61 (June, 1953)CrossRefGoogle Scholar, in which the late Justice Jackson recorded F.D.R.'s conviction and privately recorded opinion that the termination-by-concurrent-resolution section of the Lend-Lease Act was unconstitutional. The President refused to make his views public because several isolationist senators had made the same point in attacking the measure, and the administration's leaders in the Senate had gone firmly on record as to its constitutionality.

13 The purpose of this statement is to make it clear that I am not an advocate of oligarchy or judicial irresponsibility, although I do not take time out in the course of this analysis to engage in missionary activities.

14 43 Stat. 936.

15 Harper, Fowler and Rosenthal, Alan S., “What the Supreme Court Did Not Do in the 1949 Term”, University of Pennsylvania Law Review, Vol. 99, pp. 293–325 (Dec., 1950)CrossRefGoogle Scholar; Harper, and Ethrington, Edwin D., “What the Supreme Court Did Not Do in the 1950 Term”, University of Pennsylvania Law Review, Vol. 100, pp. 354–409 (Dec., 1951)CrossRefGoogle Scholar; Harper, and Pratt, George C., “What the Supreme Court Did Not Do during the 1951 Term”, University of Pennsylvania Law Review, Vol. 101, pp. 439–79 (Jan., 1953)CrossRefGoogle Scholar; and Harper, and Leibowitz, George, “What the Supreme Court Did Not Do during the 1952 Term”, University of Pennsylvania Law Review, Vol. 103, pp. 427–63 (Feb., 1954)CrossRefGoogle Scholar.

16 As Justice Frankfurter pointed out in Maryland v. Baltimore Radio Show, 338 U. S. 912 (1950).

17 Among them: Lapides v. Clark, 176 F.2d 619 (D. C. Cir. 1949) [loss of citizenship]; cert. denied, 338 U. S. 861 (1949); Trumbo v. U. S., 176 F.2d 49 (D. C. Cir. 1949) [attack on vires of House Committee on Un-American Activities]; cert. denied, 339 U. S. 434 (1950); Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512 (1949) [legality of segregation in housing built with state aid]; cert. denied, 339 U. S. 981 (1950); Mastrapasqua v. Shaughnessy, 186 F.2d 717 (2d Cir. 1950) [judicial review of deportation order]; cert. denied, 341 U. S. 930 (1951); Taylor v. Birmingham, 253 Ala. 369 (1949) [segregation enforced by breach of the peace warrants]; cert. denied, 340 U. S. 832 (1950).

18 University of Pennsylvania Law Review, Vol. 99, p. 323 (Dec., 1950)Google Scholar.

19 See Pritchett, C. Herman, Civil Liberties and the Vinson Court (Chicago, 1954)Google Scholar.

20 341 U. S. 494 (1951). It might be noted here that by refusing to grant certiorari the Court avoided ruling on the Smith Act in 1943; see Dunne v. U. S., 138 F.2d 137 (8th Cir. 1943) [conviction of Minneapolis Trotskyites under Smith Act]; cert. denied, 320 U. S. 790 (1943); rehearing denied, 320 U. S. 814 (1943).

21 First, whether the Smith Act violated the First Amendment guarantee of free speech, and, second, whether the Act was so indefinite as to constitute a violation of the Fifth Amendment guarantee of due process of law.

22 327 U. S. 304 (1946).

23 Ex parte Duncan, 146 F.2d 576 (9th Cir. 1944); cert. granted, 324 U. S. 833 (1945).

24 The Court, by an ingenious maneuver, avoided ruling on the legality of evacuation until December, 1944, almost two years after the policy was initiated, although it had an opportunity to do so in Hirabayashi v. U. S., 320 U. S. 93 (1943). The technique utilized in the Hirabayashi case to avoid the evacuation issue is discussed later in this article.

25 Luther v. Borden, 7 Howard 1 (1849); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912).

26 Colegrove v. Green, 328 U. S. 549 (1946); South v. Peters, 339 U. S. 276 (1950).

27 Oetjen v. Central Leather Co., 246 U. S. 297 (1918).

28 See the excellent discussion by Frank, John P. in Supreme Court and Supreme Law, ed. Cahn, Edmond (Bloomington, 1954), pp. 36–47Google Scholar.

29 United Public Workers v. Mitchell, 330 U. S. 75 (1947) [federal loyalty program].

30 Int'l Longshoremen's & Warehousemen's Union, Local 37 v. Boyd, 347 U. S. 222 (1954) [reëntry provisions of McCarran Act].

31 Adler v. Board of Education, 342 U. S. 485 (1952). See the discussion of standing by Ralph E. Bischoff in Cahn, pp. 26–36.

32 Massachusetts v. Mellon, 262 U. S. 447 (1923); Jones ex rel. Louisiana v. Bowles, 322 U. S. 707 (1944).

33 Georgia v. Pennsylvania Railroad, 324 U. S. 439 (1945).

34 Hirabayashi v. U. S., 320 U. S. 93 (1943).

35 Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U. S. 573 (1940).

36 NLRB v. Hearst Publications, 322 U. S. 111 (1944).

37 FTC v. Ruberoid Co., 343 U. S. 470 (1952).

38 Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 (1920) [independent judicial revaluation of administrative holding].

39 Crowell v. Benson, 285 U. S. 22 (1932) [use of doctrine of jurisdictional fact to justify de novo trial of administrative adjudication].

40 FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944) [presumptive validity of rate determination if the result is “just and reasonable”].

41 341 U. S. 322 (1951).

42 Ibid., at 324.

43 “The best source for us in determining whether a term used in the field of industrial relations has a technical connotation is the body to which Congress has committed the administration of the statute.” Ibid., at 327.

44 Monongahela Bridge Co. v. U.S., 216 U.S. 177 at 195 (1910).

45 The “presumption of constitutionality” might be considered as a separate technique of judicial self-restraint, but I consider it as a variant of judicial parsimony, a point of departure for applying Occam's razor.

46 The Supreme Court in United States History, Vol. 2, pp. 533–61Google Scholar.

47 See the treatment of this problem by Professor Pritchett, op. cit., Ch. 13.

48 See “Executive Power and Domestic Emergency: The Quest for Prerogative,” op. cit., “Education, Segregation and the Supreme Court—A Political Analysis”, University of Pennsylvania Law Review, Vol. 99, pp. 949–59 (May, 1951)CrossRefGoogle Scholar; “Plessy v. Ferguson: Requiescat in Pace?”, University of Pennsylvania Law Review, Vol. 103, pp. 46–58 (Oct., 1954)Google Scholar; and Roche and Stedman, Ch. 10.

49 The Supreme Court and the Commander-in-Chief (Ithaca, 1951)Google Scholar.

50 While this article was wending its leisurely way towards publication, the federal courts have begun to emphasize an interesting variant of judicial self-restraint in civil rights cases. Without ruling on the merits of cases at bar, judges in several key cases have utilized procedural grounds to frustrate government action. In San Francisco, a district judge ruled that the United States had not adequately sustained its evidential burden against Harry Bridges, thus saving the latter from denaturalization. In New York, the contempt of Congress indictments of Corliss Lamont and others similarly situated were quashed on the ground that the true bill did not proclaim the vires of the subcommittee before which the contempts were allegedly committed. After a long and complicated legal battle, the Court of Appeals, District of Columbia, quashed the key charge in the perjury indictment of Owen Lattimore, and the same Court undermined the plenary jurisdiction of the Passport Division of the State Department by requiring an adherence to due process in passport denials. Finally, in Peters v. Hobby, 349 U.S. 341 (1955), the Supreme Court—on a basis so narrow as to be virtually invisible (i.e., that the Loyalty Review Board was ultra vires in reopening, by its own action, the case of Dr. Peters)—overruled Peters' dismissal. Perhaps henceforth the protection of civil liberties will be effected by procedural meticulousness! This is not a new technique: in the seventeenth century it was applied by the British courts to mitigate the substantive injustices of outlawry. Even misspellings in the writ of exigent were employed to invalidate the proceedings as, for instance, in Griffith v. Thomas, Style 334 (1652), where the error of spelling praecipimus praecipipimus was held to be fatal.

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