At Issue; 48; Attack on the Court

No that issue is Supreme Court real one. A respectable people find it very difficult to join with the racists and the condemnation of the court segregation cases with the religious zealots who think that the courts is under

an obligation to effectuate their personal choice of religious beliefs with the state's writers who are thinking in terms of 1860 rather than in terms of 1960. These are groups that the self-respecting critical court doesn't want to join. As a result, he has a tendency, not to be critical of the institution, but to the power that exists to destroy it. The recent reapportionment cases, however, I think are going to bring into the camp of its enemies a larger group of moderates. And if the time comes when the people in the country feel that the court is exceeding its bounds, its word will simply be unenforceable. You take shortcuts under a free system and one fine day you take one to many and then you discover that you're going down a very dangerous path.

The National Educational Television Network presents, at Issue, a commentary on events and people in the news, at Issue, attack on the court. In the 1964 campaign, the court is under attack. I understand it. There's been only the most half-hearted effort, either within or without the court, to justify those decisions on the basis that they were within the intent of the framers of the 14th Amendment. Instead, the decisions are defended implicitly or explicitly on the grounds that the results are desirable. That it really isn't good for children to stay prayers in school and that it really is desirable to have state legislatures

in their entirety apportioned on a one-man, one-vote basis. Now, ladies and gentlemen, whether you like it or not, there is law and naked power. The decisions that have made a storm center out of our nation's highest tribunal date back ten years. The 1954 desegregation ruling, which Governor Wallace and others tried to subvert but could not, was only the beginning of a judicial decade that has already affected more Americans, seared more consciences, and engendered more hatred and approval than any other Supreme Court in our history. Brown versus the Board of Education was the beginning. It opened the doors of the lily-white schools of the south. It debunked the myth of states' rights. It began the Negro Revolution, said Earl Warren, I may be a slow walker, but I never walked backwards.

The next decision of the court that divided the country like a thunderbolt was its ruling on school prayer. It had its start in Hyde Park, New York, where several parents brought suit to force the public schools to abandon their daily morning reading of a state prescribed non-denominational prayer. The case was decided in 1962 when the Supreme Court held six to one that the prayer reading was unconstitutional, a clear violation of the First Amendment ban against the enactment of any law respecting an establishment of religion. The outcry was immediate, loud, and profane. In Congress alone, no fewer than 147 proposals were being considered to undo the decision. Among the outraged, there was the whoop and holler that

the court was now composed of godless communists. Senator Herman Townlage of George Sound of the Clarion Call. What they have done is divorced god from our scoop. We that our nation was founded on the principle of god and belief in almighty god, and I think that in this day and age, when we need god's help and his wisdom more than any time in our history and his guidance. Representative Frank J Becker, Republican of New York, saw the decision as a national tragedy.

The June 25, 1962 will go down as a blackest day in the history of the United States. The first and most fundamental is my human right to believe as I want to believe. I am an atheist. I mean by an atheist that I do not believe in god. I do not believe in any bully book. I do not believe in heaven and I do not believe in hell. Madeline Murray, formerly of Baltimore, hers was an early case that led to the court's decision. And when I am forced, or my children are forced to assume a religious posture in a public school, this is a violation of my particular human right, my freedom of conscience, very fortunately in the United States. We have a Constitution and the Constitution of the United States has embodied these rights into the law of the land. In 1963, the Warren Court continued to move further than any other court in American history to protect the rights of the individual, even when the individual is a convicted criminal.

Ruling unanimously in the case of Gideon versus Wainwright, the court held that the defendant has the inherent right to legal counsel, whether or not he has the money to pay for it. In state prisons, many were writing new appeals. Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. So wrote Chief Justice Warren on June 15, 1964, in a decision on reapportionment which will affect state government everywhere in this nation. It added up to this. Although rural election districts have been losing population to the cities, they still control most state legislatures and have a far bigger voice in the U.S. Congress than their numbers deserve. The Warren Court has changed this inequity, saying that one man's vote is worth as much as another's. One man, one vote was the language, and ordered election district lines redrawn. In the big cities, there were size of relief. The precedent case, Baker versus Carr, ruled that the lower courts now had authority

to review state legislature apportionments on the grounds that they violate the equal protection clause of the 14th Amendment. The court acted where the entrenched interests had not. The decision will now affect state legislators who may lose their jobs. It will also have a profound effect on the halls of Congress. Here, fearing the disruption of their tidy legislative domains, representatives went on the attack. Senator Everett Dirksen of Illinois gets most of his support from the rural areas down state. Reapportionment would change all this. He tells why he introduced a writer to impede the court's decision. I thought it was wrong, and because I thought it involved the ultimate perpetuity of our federal state system. The Supreme Court, in this case, as you recall, interpreted the first section of the 14th Amendment of the Constitution. In the language of Associate Justice Harlan, they completely ignored the second section.

They completely ignored the history. They didn't go back and examine the debates in the House and Senate. At the time, the 14th Amendment went on the books in 1866. Justice Harlan did and so did I. And out of it all, I thought this Supreme Court went on for their complete tangent. And in so doing in an important case, they have virtually threatened what I think. Is the remnant of our federal state system. And I'm sworn, I think, under the Constitution to try to preserve it if I can. Senator Paul Douglas, also of Illinois. He gets his support from the urban areas. Therefore, he is for the court's decision. He joins battle with Senator Dirksen, drawing first from some original material by our founding fathers. I think there are certain rights which are inalienable as the Declaration of Independence. As we hold these truths to be self-evident that all men are created equal and doubted by their creator were certain unalienable rights.

Now, the 14th Amendment says that no state should deprive any person of the equal protection of the laws. I think the court properly ruled that you cannot have equal protection of the laws if you have grossly unequal representation in the state legislatures which make the laws. Now, a person cannot sell himself into slavery. He cannot alienate by contract unalienable rights. And the individual cannot deprive himself of these unalienable rights and a majority cannot deprive a minority of these unalienable rights. Suppose a majority were to decide that people did not have the right of free speech or did not have the right of petition or did not have any of the individual rights guaranteed in the first 10 amendments to the Constitution. And they deprive minorities and individuals of this kind of majority take away one of these basic rights of a minority I don't believe so.

And therefore, the Constitution is overriding. And I think what is resented is the fact that the Supreme Court is really trying to introduce a democratic system of government. Well, if you go that far and you tell states that the federal government by relying upon the courts can determine a composition of their legislatures, why not go further? Why not put a tax on state bonds? Then you would hear the outcry. It would get to the very firmament itself. And once this kind of a precedent starts, that's the open sesame to other decisions. But look at the reverberations only within the last few days. A suit has been filed in the circuit court of Kent County, Michigan, where it is alleged, I think, by two schools that the Board of Supervisors is not properly constituted.

You might do that with a city council. You can do it with a park board. You can do it with an irrigation drainage district board. It's limitless. But when you take an individual state, the situation is entirely different. The townships are not sovereign, nor are the county sovereign, nor the cities, nor the towns. The state is sovereign. Inside, it appears. It can alter legislative boundaries. You can alter county boundaries, you can order town, or alter town boundaries and the rest. So that this analogy doesn't hold at all. It's not any incapacity of the legislatures. It is the disposition of the legislature. And if you have a legislature that refuses to correct that abuse, there is a remedy under our Republican form of government as guaranteed by the Constitution. It's in the people of the state.

Now, those abuses continued in Tennessee. So they said for about 50 years before the Baker v. Carcase got to the Supreme Court. The newspapers in Chattanooga, Nashville, and Knoxville, Memphis, used to invade against the legislature. Instead of depending on printer's ink, why didn't they do something about getting a new legislature and getting a commitment from candidates that they do something about it? See, that's the remedy. But you see, people like to take the shortcut and let the court do it. Now, in the past, the state legislatures have almost unanimously refused to deal with this question of reapportionment, or one or two such as Eric and did deal. But they allowed the cities and suburbs to develop and didn't change the basic pattern of representation, which had existed when we were a nation of farms and small towns, to be altered. And it required the decisions of the Supreme Court in 62 in the Tennessee case, and then in 64 in the Alabama and Colorado cases and the other cases, to shock some of them into action.

And some changes have been produced as a result of court action. Now, many of these changes would be invalidated, and any future changes would be invalidated by the Dexan Amendment. My legislature in Illinois can reapportion or redistribute and put it on the basis of one man and one vote, if they do, I have no moral. But that's not the issue. The issue is whether the federal government can move in under our Constitution as it stands today and order the recomposition of a state legislature. That is an invasion of a state domain where we have no right to go. I think that in default of legislative action, it became necessary for the Supreme Court to act. In the Alabama and the Tennessee cases, for instance, they had not reapportioned for over 60 years.

And during that time, the cities had developed, as they had in other states. But representation was still on this old basis in Tennessee, a small fraction of the people control the legislature. And Tennessee was not the worst case at all. Nor was Alabama. Congressman William M. Tucker, Virginia, successfully guided a bill through the House that would deny the Supreme Court the right to redraw election districts. He sees the decision as having to repercussions. The decision of the court in these reapportionment cases opened up Pandora's box of troubles. Bonds issued by their states could be reputed, because some citizens would say, well, the Supreme Court has said that your legislature was illegally assembled. And therefore, if it was illegally assembled, in the acts of that legislature are illegal and not binding. Convicts in the penitentiary could bring suit and say, I was convicted.

Under such and such state law, it was paid. Now, I'll legislate about it that the Supreme Court of the United States has said is unconstitutional and not the illegal assembly, and thus powerless to pass these laws. And therefore, the law is invalid. The law was invalid, but then his conviction is invalid. And even some of the goblins and legislate talks and judges and jurors may be haunted with the gas laploration of some of those who have been executed for violating the laws of the state who might say, well, I was executed on the laws that the Supreme Court now says. Well, unconstitutional and invalidly adopted.

Oregon Senator Wayne Morse has maintained that the court was always right on the reapportionment issue. He has refused to break bread with either the liberal or conservative senatorial block, who both wanted to affect to compromise. He talks with any tea reporter Andrew Stern. The argument is being made in some states that in essence, they are sovereign states operating within the federal government, and that therefore the one man, one vote theory is not applicable because you don't have this in the Congress where you have a house of representatives and you have two senators representing each state no matter how large or small. Well, of course, they don't know their constitutional history. They're like the civil writers who are constantly raising the hue and cry that something violates civil rights when really what they don't like is the public policy involved in a given piece of legislation. And so I've said to my southern brethren in the Senate now for some years, every time someone gets up and raises his voice, crying out against the bill because it violates civil rights. I'll give you a specific example. A few years ago, one of my southern friends did that in opposition to a bill pending in the Senate at the time for the creation of branch offices of federal building and loan association. Just imagine raising the issue of states rights against a bill that only proposed to set up branch offices of federal building and loan association.

Well, after he had been shouting about states rights for some minutes, I asked him if he would yield. And he said he'd be glad to yield as I said as the senator now ready to tell us what's unconstitutional about this bill. And then I moved in for the forensic kill. And I said, I want to say to my southern friends here in the Senate that I have listened to you for the last time raising the cry of states rights against every bill that you don't like. For there is no basis for a states rights argument to ever be made in the Senate unless the proponent of the argument is ready to show what is unconstitutional about the bill that is under consideration. For if it's not unconstitutional, it can't possibly violate states rights. You can't have a violation of states rights by any proposed bill unless that bill is unconstitutional. And I said apparently the senator doesn't like branch offices of the federal building and loan association.

He doesn't think that's good public policy. That's an entirely different basis on which to object to this bill. I'll hear him on that. But until he's ready to show me what's unconstitutional about this bill, then let me say most respectfully he just doesn't have a forensic leg on which to stand here on the floor of the Senate because this bill can't be unconstitutional. The senator doesn't know it. The Supreme Court just a few years ago declared constitutional the federal building and loan association act. And if that act is constitutional by what stretch of the imagination could a branch office under that act be unconstitutional. Well, I want to say to his credit about a half an hour later when he met me out in the cloak room and he said, Wayne, what did you do that to me for? You know that speech was for home consumption. And that's one of the sad things in the Senate in the United States.

A lot of these people that are raising the kind of argument that you've just implied in regard to the apportionment matter, know in their intellects and in their hearts that the Supreme Court is right. And all they did was hand down a decision that guarantees the perpetuation of the constitutional rights of every American in every state under the 14th Amendment. Who shall preserve the union? In the last decade it has become commonplace for liberals to wholeheartedly approve most of the court's decisions and for conservatives to decry them. But serious critics have questioned the Supreme Court's right to enter areas which they feel are better left to Congress and the White House. These critics, entirely responsible ones, have had them as fortunate of being lumped with the Birchites and other extreme hate groups. Their voices are soft rather than strident, reasonable rather than raucous. Perhaps that is why they've had trouble being heard above the Bedlam. Paul Freund, University Professor Harvard, has been appointed to write the official history of the Supreme Court.

He is a man sensitive to substance as well as morality. Some critics of the court have said that the court has actually been much too active lately and that it is sticking its nose and a lot of things that it shouldn't be involved in. How do you feel about this? I think the real issue is not whether the court has entered fields that are not properly its own. But whether the court has pressed too far in certain particular directions. Whether some of their decisions are too absolute, if you will, to Dr. Nair, to single-minded. Could you give me some examples of cases like that? The case that comes to my mind at the moment had to do with a California law that required leaflets to carry the name and address of the sponsoring personal organization. The Supreme Court, by a narrow vote, held that this requirement of disclosure was an infringement of freedom of speech and press.

That the First Amendment not only guaranteed speech and press, but anonymous speech and press. Well, to me, it seems that there are concerns of the community that might well be thought to call for a disclosure of the source of leaflets. Furthermore, one could argue that this sort of information so far from being hostile to the purposes of the First Amendment with the purposes of an open market in ideas. This sort of requirement promotes that purpose because it gives one relevant piece of information to the public. And at the same time does not unduly repress the circulation as, let's say, a disclosure of subscribers would. Well, that's a small illustration, but it may indicate what I have in mind when I say that I think the realm of speech and press is one with which the court is very properly concerned.

But when it comes to a detail of legislative regulation of this sort, the court in my judgment has, from time to time, focused too single mindedly on the interest of the speaker without sufficient regard to the interest of the community. At the University of Chicago, Professor Philip Curland, also regarded as one of the court's respectable critics, takes it to task for what he believes is its ultra-liberal position. I think the court has got its head and is going, and I think that Mr. Justice Goldberg will provide a fair amount of leadership, especially with a team with Mr. Justice Douglas, toward the utilization of the court to accomplish justice in Capitol J, which is, we define as truth and beauty with capital T and capital B.

From the scolding inkwell of a critic, the country again dispares of the court. Our president again has clashed with it. We predict catastrophe. These words of alarm were written in the year 1895. They could have been written today. The court has always endured the slings and arrows of the presidency, the Congress and the public. Yet it has managed not only to survive, but prevail. How did it all begin? The American Republic celebrates its 12th year of life. It is the fall of 1800, and Thomas Jefferson has been chosen president. It is a time for power to pass, and a time for power to be tested. Since Jefferson's inauguration will not take place until March 4th, President Adams is still able to stack the courts with his own men. In February, the Federalist Congress gets busy. Under the Federal Judiciary Act, they create new judgeships, while Adams designates Secretary of State, John Marshall, Chief Justice of the Supreme Court.

On the eve of inauguration, the White House candles burn late. Adams and Marshall are hastily signing and sealing commissions for judgeships. But Marshall neglects to deliver them all. The next day, they are found by the new Secretary of State, James Madison. He is told by Jefferson to leave them as they are, undelivered. Then Jefferson has his Congress repeal the Federal Judiciary Act, and to make sure that Marshall will not declare such a repeal unconstitutional, he closes down the Supreme Court of the United States for an entire year. Marshall obeys the edict, but bides his time. When the court convenes again, the case of Marbury versus Madison is foremost on the agenda. William Marbury was to have been a justice of the peace in the District of Columbia, another of Adams so-called midnight judges. But Marbury's formal commission is still in Madison's desk. Marbury has petitioned the Supreme Court to order his commission delivered, but Justice Marshall has a better ploy.

He knows that such an order will be ignored by Jefferson, leaving the court humiliated. So instead, he writes in his legal opinion that while he considers it shameful of Jefferson not to turn the commission over, the court is powerless because the act of Congress that gives the court such authority is actually unconstitutional. Marshall has created something far more enduring than a pretty political maneuver. He has established for the first time the principle of judicial review. It is the beginning of the era of judicial supremacy. Now it is Jefferson's turn to fight back. He decides that he will have Congress impeach and convict Marshall and the rest of the court and replace them with his own people. Congress starts with Justice Samuel Chase. Unlike later Supreme Court justices, Chase is hardly circumspect in his public speaking. He has already campaigned for Adams and berated Jefferson in open court. Now in 1805, Justice Chase is tried by the Senate. Although they are two-thirds Jeffersonian, the Senate uses better judgment than the accused and the accuser. They acquit Chase by a narrow margin.

Jefferson will not try to change the complexion of the court again. For the time being, the United States Supreme Court is free of the danger of dismissal by an opposition Congress. John Marshall serves as Chief Justice for 30 more years at political odds with every president since his appointment. He outlasts them and their attempts to curtail Supreme Court power. And when he dies, he leaves the tenant of judicial review as a legacy for all future courts and all future generations. Roger Brooke Tawny is Marshall successor. A slaveholder himself, Tawny manages to keep the court uncluttered by the issues that most affect the nation. Slavery and states rights. But by 1857, Chief Justice Tawny and the court are deeply irrevocably involved. Before them is the case of Dred Scott, a slave whose owner has taken him into the free territory of Wisconsin. Is Scott now a free man or still a slave in the state of Missouri?

Justice Tawny's majority opinion rules that Dred Scott is his master's property. He assigns Congress to protect that property. The nation will now take up arms against itself. 1866, the era of reconstruction. Congress and President Andrew Johnson are feuding. Congress has passed a Reconstruction Act which offers knee-grows in the South the right to vote, while denying that right to any southerner who fought for the Confederacy. Johnson, who saw his veto overridden, wants to appoint someone to the Supreme Court who will help get the Act ruled unconstitutional. But Congress swiftly passes another law, reducing the number of justices from 9 to 8. Not until President Grant and a new Congress move into Washington is the court restored to 9 men. In 1895, to borrow a later refrain, the rich get rich, and the poor get poorer. When Congress passes an Act calling for a 2% federal income tax on all incomes over $4,000 a year, some outraged parties bluster that the bill is...

Communistic, socialistic, and worst of all, populistic. The Court kills the Act, putting itself once again in conflict with Congress, as well as much of the American public, who are bitter at the sight of all that aster Morgan and Rockefeller money lying around untouched. There is a new force on the American scene in the 1930s. A political art form called the New Deal. But when at least two of its Trump cards are declared unconstitutional by the Supreme Court, the National Industrial Recovery Act, the NRA, and the Agricultural Adjustment Act, Roosevelt, like Thomas Jefferson, over a century before, decides that some changes in the Court are in order. In 1936, he gets his opportunity. After a landslide victory in which he wins 46 of 48 states, he goes on the air for a fireside chat. The Court has been acting not as a judicial body, but as a policy-making body.

We have, therefore, reached the point as a mission, where we must take action to save the Constitution from the Court, and the Court from itself. What is my proposal? It is simply this, whenever a judge or justice of any federal court has reached the age of 70, and does not avail himself of the opportunity to retire on a pension. A new member should be appointed by the President's Vennon office, with the approval as required by the Constitution of the Senate of the United States. This plan will save our national Constitution from hardening of the judicial order. We got out of the 37 dilemma by the Court changing. That's the real point is that Roosevelt won and lost.

He lost the Court packing, but he won the fight. Three former Supreme Court clerks, men intimately involved with chief justices and presidents. Reminus about the destiny-making they witnessed. Joseph Rao, once clerked to Justice's Cardosa and Frankfurter, later head of Americans for Democratic Action, today a busy civil liberties lawyer. Gene Gressman, for five years clerked to Justice Frank Murphy, today a leading technical expert on the Court, and a practicing lawyer. Tommy the Court, Corcoran, clerked to Justice Oliver Wendell Holmes, later an FDR trust-busting aide, today a Washington attorney. Now at this time, Tom, you were one of the chief lieutenants of the Roosevelt court packing plan. Are you one of the chief lieutenants, and that was the job that was thrown your way to work on that. How do you feel about that today, particularly in relation to the reapportionment problem that we have today? Is there any similarity between what Senator Dirksen is trying to do, and what President Roosevelt was trying to do, or both right or both wrong?

What you're feeling about the problem of the Court today, and the way we all faced it in 37? Well, it may be, I don't know, it may be, that in relationship to public opinion, the Court is reaching for an opposite reason for the reasons that caused the court-placking plan of the 30s. It may be reaching a point where it is coming under public criticism for being not too conservative, but for being too liberal. I'm a little more conservative than you two fellows, you understand? I'm an older man. And you remember Joe, what they used to say, if you're not a socialist before 40, there is something wrong with your heart, and if you are after your 40, there's something wrong with your head. We may be reaching a point, and the Dirksen amendment may be part of it. Another very interesting indication is the cutting of the salary increases for the Supreme Court alone that was involved in the last pay raise discussion. You remember every federal judge was raised, the amount indicated except the Supreme Court was conspicuously and gently knocked down $2,500.

And the Dirksen business is a part of that, too. We may be at the point where again, and I'm not saying it's justified, but just thinking pragmatically we may be again, at the point where the Court taking the lead in the vacuum of power has put itself in. Where public opinion is beginning to gel to a point where legislators feel justified in challenging the Court. Of course, Mr. Dirksen not challenging the Court the way Mr. Roosevelt challenged the Court. He's just simply moving to modify the jurisdiction of the lower court. But there is something of the same kind of feeling in the air to that degree. There is a remote association between the two periods. How do you feel about the different tactics that were used, the Court packing proposal on 37 as against Dirksen now telling the lower courts what to do on reapportionment? Well, in both instances, of course, they were acting within constitutional structures, I believe. Under Article 3 of the Constitution, Congress can change the number of justices of the Supreme Court,

which was the essence of the Court packing plan. And by the same token under Article 3, the Congress can change or alter the appellate jurisdiction of the Supreme Court as it sees fit so that in that sense, there is a constitutional similarity between proposals. But these are, I believe, viewed in a larger historical sense. These are traditional assaults upon the Court, which is such, I believe, will ultimately fail because it is a firm institution, which has survived many great ways of criticism, and I believe will survive the present one. I do think there is a significant change in the nature of the Court, which since even my day there in the 40s, I believe the Court, and particularly during the last 10 years since Chief Justice Warren has been the leading spokesman of the Court, that the Court, through the exercise of its discretionary powers, plus the existence of great numbers of economic and social matters, which had been formulated in legal terms.

That the Court, more and more, has been tackling the more difficult, the more controversial, now in the 30s, I think they were tackling the economic issues that were expressed in New Deal legislation. But we not only have that type of matter being brought before it today, but we have the civil rights matters, we have reapportionment, we have host of criminal law matters, which are a very controversial and difficult nature. And I think the Court has tackled an enormous number, the greatest number of controversial issues today, then it has in all of its history, and it's not surprising to me that the Court is a center of controversy and is a target of many different types of assault. I think if you look back on the broad sense, what happened in 37 was that those people who wanted the Court to change its philosophy won that fight, Roosevelt won.

I cannot believe that there is enough support this time, in other words, I think history has shown that the Court was just wrong in 36. I think there is no one I think any longer seeks to defend what the Supreme Court was doing in 1936. I don't find any history teachers trying to defend that position. I think history is going to show that what the Court is doing this time has real popular support, and that we are going to come out of this without anything that could destroy the appellate or jurisdiction, or would pack it or anything else. In other words, I think this time the Court is coming out ahead without any substantial change in views. Well, Joe, you want to remember. You want to remember two things. There's always been this struggle between the Court and the other parts of government. Remember, Theodore Roosevelt was for the recall of your judicial decision.

And it comes about for two reasons. It comes about because, first of all, each of these three departments of the United States government could ruin the other if it chose. After all, the Congress could ruin it, ruin the Court if it chose by redefining the appellate power of the Court. It could ruin it by cutting off a simple way, the appropriations for running what has now become an enormously complicated financial business. The executive can always handle the Court in one way or another. It's only by Roosevelt did by arousing the electorate against it, and the Court can, if it chose, as it did choose to do. In the period that Joe is talking about, of the Roosevelt time, just knocking down as unconstitutional, every statute proposed by the executive and enacted by the Congress. And there is always, within this three-part government, there is always the potential that if any one of them loses itself or self-restraint, it can hopelessly cripple the efforts of the others. There's also this strange business that we are in as lawyers. Strangely, the ingenuity of the constitutionally-minded lawyer to create a pre-presentation through the Court of every social issue.

I mean, it's just the way that you can always, even before a matter reaches the point of jelling legislatively or executively, you can contrive to bring what is in sense a legislative issue, a determination of public policy before the Court by contriving yourself a Supreme Court case. You take this ability of prayers in the public school, that was a contrive case long before the Congress was willing to talk about it. A lot of this civil rights business that we're talking about now, the constitutional lawyer can fabricate, they can arrange the issue in such a way that the Court has to be the first buffer for the social issues that are not yet considered ready for decision, either by the executive or the legislature. So the Court is always, temptedly, in this position where it can get itself in a position where either the executive or the legislature feels that the Court is transgressing on its powers.

During the years 1937 to 1954, the Supreme Court was not a buffer for the social issues. Neither the country nor the Court was prepared for controversy. The Warren Court's philosophy began to reach fruition with the end of the McCarthy era. Today, the issues are many, and each has been dealt with by the present justices. Because their points of view have made and will continue to make tremendous impact on our lives, let us examine the current bench. Hugo Lafayette-Black, a Roosevelt appointee, is the leader of the libertarian position. He was born in Alabama 78 years ago, but age is not withered nor custom-stailed his variety or energy in defending individual rights, especially those of the Negro. Justice Black is usually joined in voting by William Orville Douglas, the inexhaustible mountaineer. Together, they once formed a lonely liberal minority in earlier Supreme courts. William Joseph Brennan, Jr., was appointed by Eisenhower and considered then to be a conservative. Brennan, however, has surprised many by frequently siding with Black and Douglas.

The fourth member of this so-called liberal block is the newest member, Arthur Goldberg, once President Kennedy's Secretary of Labor. At 55, Justice Goldberg pursues social reform with a zeal matching that of Hugo Black. Though the justices themselves shun political labels, their voting records are often quite explicit. The conservative wing of the court includes Potter Stewart, another Eisenhower appointee, who often finds the court too activist for his taste. Stewart has descended in majority decisions on reapportionment and prayer in the public schools. Aligned with him is John Marshall Harlan, 64. In his dissent on reapportionment, Harlan said, if the day ever comes when the court is looked upon as the repository of all reforms, then the seeds of trouble are being sown for this institution. Byron White was known as Wizard when he was all American at Colorado University. Today, however, his critics charge him with being too cautious and claim that his opinions reflect a greater concern for the rights of institutions, less than for those of the individual. The old pro of the court is Texan Tom Campbell Clark, who was Harry Truman's first Attorney General.

Effective in the art of compromise, Clark feels the court rushes into areas where even doctrinaire liberals should occasionally fear to tread. But the man who gives his signature to the court is unmistakably in the great liberal mold, Chief Justice Earl Warren. He sees cases not as items of legal scholarship, but as classic struggles between good and evil. Once a lawyer arguing before him claimed that his client's case was unquestionably legal. The Chief Justice agreed, then searchingly asked, but is it fair? Anthony Lewis of the New York Times, Washington Bureau, a Pulitzer Prize winner for reporting on the court talks with Andrew Stern about today's justices and Earl Warren in particular. Clearly, he has been one of the strong factors moving it in the direction of greater concern for the liberty of the individual, a broader reading of the Constitution to protect those liberties.

Should say one interesting thing, this isn't a partisan matter, not at all. This court has on it now, justices who were appointed by President Roosevelt, Truman, Eisenhower, and Kennedy. And they don't break down according to that method of appointment. Eisenhower appointees will be found together with Kennedy appointees and so forth. It isn't a political thing. This isn't a partisan matter. It's something that's inside the content of a lawyer's soul, we should say. It determines the kind of judge he's going to be. Do you think that the court expected this kind of criticism after their reapportionment decision? The short answer to that is yes. I'm sure the members of the court anticipated a very great criticism of the reapportionment decision. It was inevitable because it was a very important political subject, but the court decided that that was what the Constitution meant and they weren't going to back away because of anticipated criticism. Of all the critical voices the Supreme Court hears, they listen most attentively to those of the respected academicians. Charles Black, Professor of Law at Yale University, generally favors the courts taking an act of role.

He thinks that the court should be subject to the same rules of criticism as Congress and the executive. Draw one might disagree with the solution of Congress would offer to a problem or the solution that a president might offer to a problem without concluding that the problem itself was outside the jurisdiction of the body concerned. It's a constant fashion, a style and criticism of the court to change a criticism which is actually based on disagreement with the merits of the decision to a criticism on jurisdictional grounds. It is usually considered that one hardly has to be logical about that. If the Supreme Court is wrong on the law then it must be outside its jurisdiction. Well of course that simply absurd. Any body that has to make decisions will often be wrong in the opinion of a lot of people. And if there is any absolute standard in a metaphysical entry in somewhere where there will be wrong sometimes by that standard too, that's the nature of institutions to which the process of decision is committed.

The fact that they might make a mistake now and then doesn't imply at all that the camel has put his nose in the tent where it doesn't belong or that there's been a wild and wicked excess of jurisdiction. Chicago Law School Professor Philip Curland questions whether the court should enter areas which might best be left to the other branches of government. He, like former Justice Frankfurter, thinks the court should be restrained and discriminating in its activities. The activists look upon the court as just another political branch of the government with the function of doing good. And I must say that almost all of the results of the Supreme Court has reached the results that I would be in a court with. My quarrel with them to the extent that I can be said to have a quarrel with so Augusta body is that they are not the appropriate means for attaining these results.

Unless I take it I fall on the category of those who think the court ought to exercise self-restraint, largely for its own good, largely because it is not going to be able to effectuate its commands unless it continues to command the respect of American society. Harvard's Paul Freund sees the court exercising a strong moral function without involvement in partisan politics. In a sense the court must remain somewhat aloof but not indifferent to the great issues of the day. The court has to assess what might be thought of as the higher thinking of the people, the sober second thought, or what Lincoln called into our better natures. What are our better natures as American people? What if we were driven to the state would we really acknowledge to be our basic values?

In this sense far above partisan politics the court should reflect the concerns, the values and interests of the time and it's a very difficult thing obviously to assess. But in dealing with vague standards like equal protection, cruel and unusual punishment, due process of law, the framers obviously left it to the judges to fill in with the better thought of the time, the better natures of the time. These deliberately vague and yet terribly meaningful standards.

We then ask Professor Freund if once the better thought of the times is left to the judges, do they then in effect become the conscience of the country? We'd be in a sad state I think if we had to look to any nine man much less the Supreme Court as the conscience of the country or the moral censor of the country. At the same time in discharging its own responsibilities the court is a valuable moral teacher or can be if for example in contrast you look to England and ask what the great landmarks of civil liberty are. You would probably turn to that great secular trinity of John's John Milton John Locke and John Stuart Mill philosophers and publicists. In this country you would look primarily to lawyers and judges Thomas Jefferson and then judges like Justice Holmes, Justice Brandeis, Chief Justice Hughes to mention only the departed.

Because in the course of their work as judges particularly in interpreting the basic guarantees of the Bill of Rights which are after all moral and ethical mandates they are bound to articulate a moral sense. And so their utterances though not designed for literary anthologies or moral guide books their utterances find their way in that direction and we're all richer for it. Professor Curlin is skeptical of the courts involvement in many areas this involvement he fears might dilute the courts effectiveness in fact it might cry wolf once too often.

One of the difficulties that I have with this is it seems to me that the court fulfills a very is potentially capable of fulfilling a very important function in that government and that is in the time of emergency it's going to be able to put on a break and say hold on the government of the United States or the government of the state has gone too far. If instead of reserving this power for use at critical times and I think as I said the segregation cases represented one of those critical times every time an issue comes before the court which they think presents a problem of what they find desirable supposed what they find undesirable only imposed their will because they are quote the conscience of the country. Then the time is going to come when the obligation of meeting a real crisis will be presented to them and they will be unable to act or they will act but find that their act doesn't take effect. Eventually the Supreme Court like Congress and the president must draw its power from the people.

The question then is how do nine appointed justices respond to the will of the people. The most conspicuous connection between the will of the people and the court as whole and the work of the court as whole in me is that the jurisdictional statutes passed by Congress are the things that put the court in business and in this particular business as well as all the rest of its business. The very clear that Congress could at any time in the last 175 years have very severely crippled the exercise by the court of its function of judicial review. The Congress never has done that that every attempt to do it generally today has been beaten down in Congress. I just don't think you can get around by explaining away the effect of a historical fact of this dip and dimension. The people as best we know seem to want this court to do this work if they don't they can bring it about that the court stop doing this work.

I don't think for a moment that they want it to quit or that they will take the actions that would be necessary to make it to quit. To refine the will of the people this is how James Madison interpreted the role of the Supreme Court. For the last decade this is precisely what the Warren Court has done. It has shattered precedence. It has extended the protection of the Bill of Rights beyond all previously known limits but responsible critics want the court's power to be temperate with self-restraint. They believe the court has moved into areas perhaps best left to Congress and the White House. If this criticism is valid what does the court do when the other two branches fail to act either out of inertia or moral incapacity? Oliver Wendell Holmes said it best. A man should take part in the action and peril of his time at the risk of being judged not to have lived.

The court has decided to take part in the action of the Supreme Court. The court has decided to take part in the action of the Supreme Court. This is NET, the National Educational Television Network. This is NET, the National Educational Television Network.