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Whence and Whither the Burger Court? Judicial Self-Restraint: A Beguiling Myth

Published online by Cambridge University Press:  05 August 2009

Alpheus Thomas Mason
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Extract

Every Court is the product of its time, reflecting predilections of fallible men in black robes. While wearing the magical habiliments of the law, Supreme Court justices take sides on controversial issues. From John Marshall to Warren Burger, the Court has been the guardian of some particular interest and the promoter of preferred values. Thus judicial activism, of whatever orientation, involves a paradox at the heart of constitutional orthodoxy—the Supreme Court considered as the mouthpiece of self-interpreting, self-enforcing law.

Type
Research Article
Information
The Review of Politics , Volume 41 , Issue 1 , January 1979 , pp. 3 - 37
Copyright
Copyright © University of Notre Dame 1979

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References

1 To halt the most destructive judicial binge in American history, dissenting Justice Stone countered in 1936 with the self-effacing dictum: “The only check upon our own exercise of power is our own sense of self-restraint” (U.S. v. Butler, 297 U.S. 1 [1936] 79Google Scholar). An extraordinary pronouncement by an unusually sophisticated judge. Confronted the next year with President Roosevelt's Court-packing threat, the Court itself, contradicting Stone, repudiated its power-killing decisions without a single change in judicial personnel. Nor is restraint confined to indirect pressure. The Constitution itself expressly grants Congress control over the Court's appellate jurisdiction. Decisions on constitutional issues may be altered by amendment and judicial appointments. Statutory interpretation can be overturned or revised by an act of Congress.

Yet the judicial reply to Stone's suggestion was put in terms of judicial orthodoxy, the patent fiction that Supreme Court justices merely exercise judgment, not will. Justice Sutherland commented: “The suggestion that the only check upon the exercise of judicial power … is the judge's own faculty of self-restraint, is both ill-considered and mischievous. Self-restraint belongs to the domain of will and not of judgment” (West Coast Hotel v. Parrish, 300 U.S. 379 [1936] 402Google Scholar).

“Judicial self-restraint,” the exception rather than the rule, is often a thin disguise for judicial advocacy. Philip Elman, Justice Frankfurter's law clerk when the First Flag Salute Case (Minersville v. Gobitis, 310 U.S. 586, [1940]Google Scholar was decided, reminisced on the ninety-fifth anniversary of the Justice's birth: “For a guy who preached judicial disinterestedness, his violation of that principle was the most extreme on the Court” (New York Times, 23 October 1977, p. 34, col. 5).

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In rejecting the so-called double standard, Bickel and Kurland ignore the fact that Felix Frankfurter, their mentor, inspired by Holmes, had embraced the concept of “preferred freedoms” at the beginning of his judicial career. In 1939, Archibald MacLeish and E.F. Pritchard, Jr., both friends and close students of Frankfurter's pre-Court writing, declared:

The question which history presents to us is the question whether our present industrial and economic system can be changed over to an efficient, workable and socially effective system without the substitution of authoritarian forms of government for the democratic forms of government to which we are devoted. Translated into constitutional terms that question becomes the question whether the Court can and will permit the legislatures the widest latitude in framing economic measures altering property relations while sharply rejecting all attempts to curtail or restrict civil liberties. On that issue the position of Mr. Frankfurter is clear. He has stated his views on both halves of the question separately. And, in writing of Mr. Justice Holmes, he has by inference stated his view of the two together. In the case of economic measures, as Mr. Frankfurter puts it, Holmes was “hesitant to oppose his own opinion to the economic views of the legislature.” The legislatures clearly having power to interfere with property rights in certain cases, Mr. Justice. Holmes was willing, in cases involving economic and social legislation alleged to violate the Due Process clauses, to make the legislative discretion as broad as possible. But not so in cases where laws and other acts encroached on guaranteed rights and liberties such, for first example, as freedom of speech. There he was far more ready to declare acts of legislation unconstitutional because history had taught him that “since social development is a process of trial and error, the fullest possible opportunity for the free play of the human mind was an indefeasible prerequisite. …” It is difficult to avoid the conclusion that Mr. Frankfurter will take his stand upon the same distinction (MacLeish, and Pritchard, , eds., Law and Politics [New York, 1939], p. xxiiiGoogle Scholar).

Forte, David F., ed., The Supreme Court in American Politics: Judicial Activism vs. Judicial Self-Restraint (Lexington, Mass., 1972)Google Scholar, provides a wide range of views on this controversial subject.

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On the same phenomenon, Fred Rodell comments: “Not since the Nine Old Men of unhallowed memory struck down the first New Deal almost 30 years ago … has any Supreme Court used its politico-legal power so broadly and boldly as did Earl Warren” (“The Warren Court Stands Its Ground,” New York Times Magazine, 27 September 1964).

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94 Letter from Jefferson, to Madison, , 15 03 1789. Boyd, J.P., ed., The Papers of Thomas Jefferson (Princeton, 1950–), XIV: 659Google Scholar.

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98 Palko v. Conn., 302 U.S. 319 (1937), 326–27Google Scholar. Stressing the Court's creative role, Judge Cardozo writes: “The judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and expression, in guiding or directing choice within limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values and with suppleness of adaptation to changing social needs” (Cardozo, B.N., The Nature of the Judicial Process [New Haven, 1921], p. 94Google Scholar).

99 Jackson, Robert H., The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York, 1941), pp. 284–85.Google Scholar.

100 410 U.S. 113 (1973), 222.

101 Ibid., p. 174.

102 426 U.S. 833 (1976), 861–62.

The Tenth Amendment declares: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Anti-Federalist lawmakers that framed the amendment tried unsuccessfully to get “expressly” inserted before the word “delegated.” Opponents, including Madison, argued that the effect would be to hamstring national power. Without “expressly” the Amendment became a constitutional tranquillizer framed, as Chief Justice Marshall said, “for the purpose of quieting the excessive (State) jealousies which had been excited” (McCulloch v. Maryland, 4 Wheat. 316 [1819], 406.Google Scholar). In later years the Supreme Court succeeded where Congress failed, in effect, inserting “expressly,” thus limiting (as in Usery) Congress's choice of means for carrying its enumerated powers into execution. See, in this connection, Mason, , The States' Rights Debate: Antifederalism and the Constitution (New York, 1972), pp. 97–98Google Scholar.

103 Wilson, Woodrow, Constitutional Government in the United States (New York, 1917), p. 157Google Scholar.