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The Supreme Court and “The Moment of Truth”*

Published online by Cambridge University Press:  01 August 2014

Carl Brent Swisher
Carl Brent Swisher*
Affiliation:
The Johns Hopkins University
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Extract

This annual ceremony of our non-partisan Association is being held at a time when most political scientists are preoccupied with the events of a fateful national election. To avoid any implications of partisanship, it seems best on this occasion to eschew politics in the conventional sense and to concentrate on institutional analysis not applicable to the current conflict. This discussion will therefore deal with the Supreme Court and with the Court primarily as an institution, rather than with problems of changing personnel or the political implications of particular decisions. It will assume that institutions are important in terms of their intrinsic nature and that the kind of institution to be used for a particular governmental task depends largely on the kind of task to be performed, with room for exceptions in exceptional circumstances. So it is that the Court will be presented not in isolation but as a part of the judicial system at whose apex it stands, and will be discussed in terms of the assumptions which lie back of and dictate its rituals, routines and procedures, and which have a great deal to do with determining its efficacy for the tasks allocated to it.

Because analysis of hallowed institutions and ritualized performance is often incorrectly identified with the expression of hostility or disrespect, with only deference permitted on the part of him who would leave the ritual or the institution with the stature it had when he approached it, let me emphasize that the purpose here is not to attack or to disparage but to analyze and to encourage further analysis, with creative ends in view.

Type
Research Article
Information
American Political Science Review , Volume 54 , Issue 4 , December 1960 , pp. 879 - 886
Copyright
Copyright © American Political Science Association 1960

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Footnotes

*

Presidential address, delivered before the American Political Science Association in New York City, September 8, 1960.

References

1 See Radin, Max, “The Permanent Problems of the Law,” Cornell Law Quarterly, Vol. 15 (Dec., 1929), p. 6.Google Scholar

2 See Curtis, Charles P., It's Your Law (1954), pp. 1–41.CrossRefGoogle Scholar

3 Fuller, Lon L. and Randall, John D., “Professional Responsibility: Report of the Joint Conference,” American Bar Association Journal, Vol. 44 (Dec., 1958), p. 1159.Google Scholar

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5 Malcolm v. Bayard, 1 Johnson (N. Y.) 453, 471 (1806).

6 Dupont v. Vance, 19 Howard (U. S.) 162, 175 (1857).

7 See Rule 34, Rules of Civil Procedure, 82 L. ed. 1588.

8 Hickman v. Taylor, 329 U. S. 495, 516 (1947).

9 Chesnut, W. Calvin, Sixty Years in the Courts (1947), p. 65.Google Scholar

10 Frankfurter, Felix, “Personal Ambitions of Judges: Should a Judge ‘Think Beyond the Judicial’?” American Bar Association Journal, Vol. 34 (Aug., 1948), p. 747.Google Scholar

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12 Id., p. 236.

13 Curtis, op. cit., p. 2.

14 Calamandrei, Piero, Procedure and Democracy (1956), p. 37.Google Scholar

15 See Follett, M. P., Creative Experience (1924), pp. 91–116 Google Scholar; Köhler, Wolfgang, Gestalt Psychology (1947).Google Scholar

16 See Botein, Bernard, “The Future of the Judicial Process: Challenge and Response,” The Record of the Association of the Bar of the City of New York, Vol. 15 (April, 1960), 152–173 Google Scholar; Guttmacher, Manfred S., The Mind of the Murderer (1960), pp. 109–226.Google Scholar

17 See Twiss, Benjamin R., Lawyers and the Constitution (1942).Google Scholar

18 See United New York & New Jersey Sandy Hook Pilots Association v. Halecki, 358 U. S. 803 (1958).

19 See “Private Attorneys-General: Group Action in the Fight for Civil Liberties,” Yale Law Journal, Vol. 58 (March, 1949), pp. 574–598.

20 See Craig v. Harney, 331 U. S. 367 (1947).

21 Vose, Clement E., “Litigation as a Form of Group Activity,” Annals of the American Academy of Political and Social Science, Vol. 319 (Sept., 1958), pp. 29–30.CrossRefGoogle Scholar

22 Rules of the Supreme Court of the United States, 346 U. S. 993–994 (1954).

23 Order Adopting Revised Rules of the Supreme Court of the United States, 346 U. S. 945, 947 (1954).

24 Myers v. United States, 272 U. S. 52 (1926).

25 James M. Beck to William Howard Taft, Oct. 28, 1926, Taft Papers.

26 Freund, Paul A., “Introduction,” in Bickel, Alexander M., The Unpublished Opinions of Mr. Justice Brandeis (1957), p. xvii.Google Scholar

27 332 U. S. 46 (1947).

28 For details see the case in the California supreme court, People v. Adamson, 165 P. (2d) 3 (1946).

29 For discussion of Justice Black's historical performance see Fairman, Charles, “Does the Fourteenth Amendment Incorporate the Bill of Rights?”, Stanford Law Review, Vol. 2 (Dec., 1949), pp. 5–139.CrossRefGoogle Scholar

30 From a recording of a speech by Robert Frost, delivered at the Johns Hopkins University Poetry Festival, Nov. 13, 1958.

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