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The Judicial Function Under the Constitution: Theory and Practice

Published online by Cambridge University Press:  12 May 2020

Henry J. Abraham
Henry J. Abraham*
Affiliation:
University of Virginia
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Extract

No branch of the American system of government has been at once less understood and more misunderstood than the judiciary. Yet it may well be argued — and I propose to do so — that the so-called “least dangerous branch” (Hamilton's half-truth) is, in the final analysis, the most powerful of the three in its impact upon the nature and character of our constitutional law. Notwithstanding rampant, and indubitably often justified, criticism, it is also seen by the public as both the most trustworthy and the most professional of the three. And incidentally — or not so incidentally — it also ranks high, indeed, in that perception among all visible public and private groups, with Congress consistently bringing up the rear, outranked in the booby realm only by lawyers (what delicious irony!) and labor unions.

Type
Research Article
Information
News for Teachers of Political Science , Volume 41 , Spring 1984 , pp. 10 - 15
Copyright
Copyright © American Political Science Association 1984

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References

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2 (New York: Harper & Rowe).

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9 (New Haven, Conn: Yale University Press).

10 Volume 6, Number 2 (Winter 1979).

11 “0n Judicial Policymaking and Constitutional Change: Another Look at the ‘Original Intent’ Theory of Constitutional Interpretation,” 6 Ibid. 603 (1978).

12 Holmes, O.W Jr., The Common Law (Boston: Little, Brown, and Company, 1881), p. 1Google Scholar.

13 A Comparative Analysis of the United States, England, and France (New York: Oxford University Press, 1962, 1968, 1975, 1980, 1985).

14 (Princeton, N.J.: Princeton University Press).

15 lbid., p. 85.

16 For a less than complimentary, extensive analysis of juries, see my The Judicial Process, op. cit., fn. 13, pp. 116-40.

17 e.g., Freedman, Monroe H., Lawyers’ Ethics in an Adversary System (Indianapolis, Ind.: The Bobbs-Merrill Co., 1975)Google Scholar.

18 Frank, op. cit., fn. 14, ch. 6—a brilliant, devastating analysis.

19 Ibid., p. 19.

20 See the description in my The Judicial Process, op. cit., fn. 13, pp. 105-107.

21 “Justice,” The New York Times, October 26, 1975, Sec. 4, p. 16e.

22 lbid.

23 Ibid.

24 Ibid.

25 Frank, op. cit., fn. 14, p. 102.

26 See 68 Journal of the American Bar Association 898 (August 1982).

27 dick, the Butcher, in Hevry VI, Pt. II, Act 4, Scene 2, Line 83.

28 Senate-passed legislation to remove mandatory jurisdiction in certain appellate cases was killed by the House's failure to act (with Speaker “Tip” O'Neill's sanction) in 1979, 1980, 1981, 1982, and 1983.

29 For example, the 16 member “Commission on Revision of the Federal Court Appellate System” (known as the Hruska Commission“) and the Report of the Study Group on the Case Load of the Supreme Court (known as the “Freund Report“). See also the Chief Justice's forthright “Annual Report(s) on the State of the Judiciary“; his recurring remarks at the American Law Institute Meeting(s); his similar appeals to the American Judicature Society; and the well-publicized plaint, separately enunciated, by seven of the eight Associate Justices of the U.S. Supreme Court between July 1982 and December 1983.

30 428 U.S. 465. See also United States v. Janis, 428 U.S. 433 (1976).

31 e.g., three 1982 rulings: Engle v. Isaac, 50 LW 4376; U.S. v. Frady, 50 LW 4388; and Rose v. Lundy, 40 LW 4272.

32 Erie Railroad Co. v. Thompson, 304 U.S. 64 (1938).

33 See the description in any The Judicial Process, op. cit. fn. 13, pp. 150-151, fn. 16.

34 lbid. In 1980, the panel lawyers were each maid a nominal fee of $40.00 per case, the chairman $70.00. The average cost per “trial” to date has been put at $99.50.

35 (Minneapolis, Minn.: University of Minnesota Press).

36 (Boston: Little, Brown, and Co.).

37 Berkeley, Calif.: University of California Press).

38 (New York: Oxford University Press, 1974; New York: Penguin Books, 1975; and New York: Oxford University Press).

39 Curtis Bok, Backbone of the Herring (New York: Alfred A. Knopf, 1941, p. 3.

40 See my Justices and Presidents, op. cit., fn. 37, passim and my The Judicial Process, op. cit., fn. 13, pp. 36-41.

41 His one-time colleague on the Court, Sherman Minton, in a letter to “FF,” fully seconded the latter's view: “A copy of your letter should be sent to every member of Congress. Your statement explodes entirely the myth of prior judicial experience. I am a living example that judicial experience doesn't make one prescient.” (Frankfurter's Papers, Library of Congress, S.M. to F.F., 18 April 1957. Minton had served eight years on lower courts.) The Frankfurter essay is “The Supreme Court in the Mirror of Justices,” 105 University of Pennsylvania Law Review 781 (1957).

42 Frankfurter, ibid.

43 See my The Judicial Process, op. cit., fn. 13, pp. 29-31.

44 Thus, ex-Senator Ervin (D.-N.C.) would like to see all federal judges selected by a panel of sitting senior jurists, followed by Senate confirmation. Professor Chase, in his Federal Judges, op. cit., fn. 35, favored the selection of all lower federal judges by the U.S. Supreme Court alone. Professor Peter Graham Fish of Duke University, also disdaining any senatorial role, suggests the vesting of the appointive power of all judges in the Chief Justice of the United States alone, acting under the “Heads of Department” provision of Article II-2-1 of the Constitution.

45 See my address to the Supreme Court Historical Society, April 30, 1982, adapted for publication by 66 Judicature 7 (February 1983), pp. 282-95, entitled “ ‘A Bench Happily Filled,': Some Historical Reflections on the Supreme Court Appointment Process.” See also Goldman, Sheldon, “Judicial Selection and the Qualities that Make a Good Judge,” 462 Annals of the American Academy of Social and Political Science 112 (July 1982)CrossRefGoogle Scholar.

46 See supra

47 See fn. 1, op. cit.

48 347 U.S. 483 and 347 U.S. 497, respectively.

49 369 U.S. 186(1962).

50 304 U.S. 144, at 152-53.

51 For a detailed analysis and discussion see my Freedom and the Court: Civil Rights and Liberties in the United States, 4th ed. (New York: Oxford University Press, 1982), Chapter II, “The Double Standard,” and III, “The Bill of Rights and its Applicability to the States,” especially pp. 15-21.

52 302U.S. 319.

53 381 U.S. 479(1965).

54 410U.S. 113(1973).

55 302 U.S. 319(1937).

56 7 Harvard Law Review 129.

57 Phillips, Harlan B. (ed.), Felix Frankfurter Reminisces New York: Reynal and Co., 1960), p. 301Google Scholar.

58 Gabin, op. cit., fn. 7, p. 28.

59 “Origin and Scope,” op. cit., fn. 7, pp. 143-44.

60 See review essay by O'Brien, David M., “Judicial Review and Constitutional Politics,” 48 University of Chicago Law Review 1052, 1054, 1080(1981)CrossRefGoogle Scholar.

61 427 U.S. 50 (1952).

62 426 U.S. 833 (1976).

63 418 U.S. 683 (1974).

64 Choper, op. cit., fn. 5, p. 59.

65 Ely, op. cit., fn. 6, p. 181.

66 198 U.S. 45 (1905).

67 Op. cit., fn. 54.

68 “Judicial Activism,” The Federalist Society Conference on “Judicial Activism: Problems and Responses,” The University of Chicago Law School, April 8, 1983.

69 Perry, op. cit., fn. 9, p. 163.

70 Miller, op. cit., fn. 8, p. 305.

71 Ibid.

72 Ibid. (Italics in original).

73 “Arthur Selwyn Miller's Council of Elders: Some Thoughts on Toward Increased Judicial Activism “ 51 The George Washington Law Review 3 (March 1983).

74 Ashwander v. Tennessee Valley Authority, 297 U.S. 280 (1936).

75 See my The Judicial Process, op. cit., fn. 13, Ch. IX, for “The Sixteen Great Maxims of Judicial Self-Restraint,” pp. 373-97.

76 Lusky, By What Right?, op cit., fn. 3.

77 418 U.S. 683 (1974).

78 343 U.S. 579 (1952).

79 347 U.S. 483 (1954).

80 369 U.S.186 (1962).

81 372 U.S. 335 (1963).

82 The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 160.

83 Vol. I, p. 150, of the edition translated by George Lawrence, edited by J.L. Mayer (1966).

84 Berger, Raoul, “Academe vs. the Founding Fathers,” XXX National Review 15 (April 14, 1978), at 471Google Scholar.

85 377 U.S. 533, at 624.