Hanna, W. Clark

English

North Carolina Central University (NCCU), School of Law: History and Scholarship Digital Archive

North Carolina Central Law ReviewVolume 2 | Issue 1 Article 114-1-1970An Attempted Appraisal of an Attempted Appraisalof the Warren CourtW. Clark HannaFollow this and additional works at: https://archives.law.nccu.edu/ncclrPart of the Judges Commons, and the Supreme Court of the United States CommonsThis Article is brought to you for free and open access by History and Scholarship Digital Archives. It has been accepted for inclusion in North CarolinaCentral Law Review by an authorized editor of History and Scholarship Digital Archives. For more information, please contact jbeeker@nccu.edu.Recommended CitationHanna, W. Clark (1970) "An Attempted Appraisal of an Attempted Appraisal of the Warren Court," North Carolina Central LawReview: Vol. 2 : Iss. 1 , Article 11.Available at: https://archives.law.nccu.edu/ncclr/vol2/iss1/11AN ATTEMPTED APPRAISAL OF "ANATTEMPTED APPRAISAL OF THEWARREN COURT"*W. CLARK HANNA**Gilbert Nurick's comparison of the efforts to impeach Earl Warrenwith the efforts to impeach John Marshall a century and a half before(Pa. Bar QUARTERLY, March 1968) is a discerning and interesting ex-cursion into U.S. legal history. Mr. Nurick goes on to argue that be-cause subsequent history vindicated Marshall's highly unpopular opinionsextending federal power at the expense of the states, it should follow thatWarren's posterity may be expected to do the same for him, and that thehistorians of the future will conclude that the Warren Court adhered tothe basic philosophy of Marshall eloquently enunciated in Cohens v. Vir-ginia:A constitution is framed for ages to come, and is designed to ap-proach immortality as nearly as human institutions can approach it. Itscourse cannot always be tranquil. It is exposed to storms and tem-pests, and its framers must be unwise statesmen indeed, if they havenot provided it *** with the means of self-preservation from theperils it may be destined to encounter. No government ought to be sodefective in its organization as not to contain within itself the meansof securing the execution of its own laws against other dangers thanthose which occur every day.AMENDMENT PROCEDUREWe submit that Mr. Nurick's argument is incomplete and falls shortof proving the desired conclusion. It is quite true that the Constitutionis provided with the "means of self-preservation." But this is not foundin any judicial power, specified or implied, to "self-preserve" it by judicialinterpretation, or reinterpretation, of issues already decided earlier. Itlies, on the contrary, specifically in Article V of the Constitution itself.It consists of the four alternative methods of amendment by the peopleacting through their representatives. These are legal-if you like, demo-cratic-methods that the Framers wisely provided for changing the Basic* This article was published in the PENNSYLVANIA BAR AssocIATION QUAR-TERLY (June 1969).** Member of the Pennsylvania Bar Association.1Hanna: An Attempted Appraisal of an Attempted Appraisal of the Warren CoPublished by History and Scholarship Digital Archives, 1970THE WARREN COURT 111Law as new conditions and well considered public opinion might require.To believe that history always repeats is to perpetuate as fact aproposition that history itself has proved over and over to be a fallacy.Americans of the early 19th century and the world they lived in werefar, far different from those of the late 20th century. Mr. Nurick him-self points this out. For that reason alone the vindication of John Mar-shall by no means points with any certainty whatever to the vindicationof Earl Warren.JUDICIAL POWERBut the issue really seems to hang on two broader and more basicissues :(1) The power of the judiciary to invalidate legislative and ad-ministrative acts because in the judges' opinion such acts conflict with(a) the Basic Law or(b) the public interest as of the present time and locality;(2) The power of the judiciary to modify or reverse in one case arule already settled by decision in an earlier case in the same court on thesame issue because in the judges' opinion(a) the law was erroneously applied in the earlier case, or(b) the rule laid down in the earlier case conflicts with the publicinterest as of the present time and locality.(1) (a) A court's power to declare a statutory or administrativeact unconstitutional when the question comes before it in an actual liti-gated case is peculiar to American law and has not been seriously chal-lenged since Marshall's Court first enunciated it in Marbury v. Madison.Sir Edward Coke stood on much the same principle when he as-serted the supremacy of the Law even over the Crown. Obviously theinterpretation and application of the law, constitutional, statutory andadministrative, is precisely what the judiciary is in business for.(2) (a) By the same token, from time beyond memory an Americanor English court has been accorded the power to decide a given issue in acase before it quite at variance with conclusions which it reached on thesame issue in a previous case on the ground that it now finds that it mis-applied the law in the prezious case.With these two propositions there is little room for dissent. (1) (b)and (2) (b) are a comparatively modern development.2North Carolina Central Law Review, Vol. 2, Iss. 1 [1970], Art. 11https://archives.law.nccu.edu/ncclr/vol2/iss1/11112 NORTH CAROLINA CENTRAL LAW JOURNALJUDICIAL-LEGISLATIVE POWERSInvalidating a statute or regulation or reversing a prior court opinionon grounds other than legal has been both attacked and defended bylegions of competent authorities over the years, especially since the Su-preme Court, speaking through Chief Justice Warren in Brown v. Boardof Education in 1954, overturned the rule of Plessy v. Ferguson. Thelatter was based on an interpretation of the 14th Amendment by the sameCourt with a different bench over half a century before. We do not pro-pose at this point to add another recruit to any of those legions, exceptto renew the question whether such invalidation or reversal is not inter-preting the Law but changing it-a legislative function, not judicial.It may be asked, if the Marshall Court could invalidate a federalstatute in the Marbury case, why could not the Warren Court in theBrown case reverse an earlier holding of what was technically the samecourt, thus in effect voiding a state statute? It should be noted that theformer was a matter not of changing the Law, but of interpreting andapplying existing Law as a matter of first impression, to the case beforeit. The latter was a changing, on non-legal grounds, of Law that was ineffect by virtue of its earlier Plessy decision. Moreover, it invalidated astate law which the highest court of that state had upheld on the au-thority of the Plessy case.Theoretically (if not practicably) the Supreme Court can reverseany of its own decisions from Marbury v. Madison on down, provided,in some new case involving the same issue, it can devise plausible legalreasoning to the effect that it applied the law erroneously in the earliercase as the law was at that time.According to the present trend of the Court's thinking, as exemplifiedin Brown v. Board of Education and numerous others, it can also reverseany of its earlier cases in deciding a new case if in the five-man wisdomof a bare majority it finds that the public interest of the present day re-quires it.CENTRALIZED GOVERNMENTAs a practical matter the holdings of both the Marbury and Browncases appear to be quite safe in the hands of the United States SupremeCourt. Based though they are on completely different reasoning andcompletely different legal and political philosophies, both serve tostrengthen centralized government at the expense of the states. For betteror worse, that is the way the tree has been inclined ever since Marshall3Hanna: An Attempted Appraisal of an Attempted Appraisal of the Warren CoPublished by History and Scholarship Digital Archives, 1970THE WARREN COURTbent the twig. There appears no present likelihood that the Court willundertake to bend the full grown trunk the other way.STARE DEcIsisLord Coke's dictum, "the knowne certaintie of the law is the safetieof all," states a basic necessity in the maintenance of a stable society. Ifno one can be certain of his legal rights and obligations because a courtmay decide to change them due to its own ideas of a changed publicinterest, no one can safely undertake new projects and new commitments.Hence the well-known (but apparently obsolescent) doctrine of staredecisis. We submit that once a court-any court-settles an issue in acase before it, that decision should be considered Law as far as thatcourt-or any court of jurisdiction subordinate to it-is concerned, un-less and until(1) the decision is reversed on grounds of legal reasoning upon directappeal to a court of superior jurisdiction, or(2) the same issue comes before the same court in a subsequent caseand it plausibly finds an errot of law in its prior decision, or(3) the ruling is changed by appropriate legislative action, which meansconstitutional amendment if interpretation of a constitutional pro-vision is the issue.SUPREME LAW OF THE LANDWe pose one more question as bearing on posterity's verdict on theWarren Court. It was succinctly stated by Senator Sam Ervin (D.,N. C.) as follows:"There is not a word or syllable anywhere in the Constitution whichsustains the position that a Supreme Court's interpretation of a consti-tutional provision constitutes the supreme law of the land. On the con-trary, Article VI provides in unmistakable language that nothing con-stitutes the supreme law of the land except the Constitution, acts ofCongress conforming to the Constitution and treaties made under the au-thority of the United States."*To state it another way, does the responsibility of state judges underArticle VI, Sections 2 and 3 run directly to the Constitution, acts ofCongress and treaties only, or does it extend to the labyrinth of case lawto be constructed subsequently by a Supreme Court that was a creature* Human Events, Jan. 21, 1967, at p. 12 in review of The Warren Revolutionby L. Brent Bozell (Arlington House, 1966).4North Carolina Central Law Review, Vol. 2, Iss. 1 [1970], Art. 11https://archives.law.nccu.edu/ncclr/vol2/iss1/11114 NORTH CAROLINA CENTRAL LAW JOURNALof the Constitution and that did not come into existence until after theConstitution itself became Law? We do not find either in Article IIIdefining the judicial power of the United States, or anywhere else in theConstitution specific authority for the Supreme Court to review a con-stitutional interpretation by the highest court of a state-or, for thatmatter, specific authority for the Supreme Court even to entertain ap-peals from the highest court of a state at all except in the classes of casesenumerated in Article III, Section 2. It would seem that this is anothertwig originally bent by the Supreme Court itself and nurtured into ma-jestic treehood by long time universal acceptance.Whether posterity vindicates Earl Warren as it did John Marshallwill therefore depend on whether posterity returns to the Rule of Law(which includes changing the Law by the Law's own processes) as dis-tinguished from rule by judicial interpretation and re-interpretation ofdecided cases according to the judges' personal analyses of contemporaryconditions. If, and only if, the latter view continues to prevail, Warrenwill be permanently "in" as-for different reasons-Marshall is now.5Hanna: An Attempted Appraisal of an Attempted Appraisal of the Warren CoPublished by History and Scholarship Digital Archives, 1970

An Attempted Appraisal of an Attempted Appraisal of the Warren Court

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An Attempted Appraisal of an Attempted Appraisal of the Warren Court

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