Scanlan, Alfred L.

English

University of Chicago Law School: Chicago Unbound

BOOK REVIEWSOn Understanding the Supreme Court. By Paul A. Freund. Boston: Little,Brown & Co., 195o. Pp. xvi, 128. $3.50.It took a political, economic and jurisprudential upheaval, revolutionary inits ultimate effect if not in its immediate method, to confirm for American con-stitutional law, the observation of Justice Holmes that the "life of the law hasnot been logic: it has been experience." Sociological jurisprudence has carriedthe field before it; its devotees populate the judiciary, the bar, and the rostrum.Most all of them agree that the "felt necessities of the time, the prevalent moraland political theories, intuitions of public policy, avowed or unconscious, eventhe prejudices which judges share with their fellow-men, have had a good dealmore to do than the syllogism in determining the rules by which men should begoverned."' The syllogism is dead: Long live sociological constitutional law!Yet, as the cheering subsides and we revert to the business of studying, ap-praising, and prophesying the course of American constitutional law, the taskmay be no easier under the rule of the sociologist than it was under that of thelogician. Both have their complexities. It is to furnish an understanding of therange and scope of these problems as they beset the United States SupremeCourt that Professor Freund has presented us with the published edition ofthree stimulating lectures which he delivered under the auspices of the JuliusRosenthal Foundation of the Northwestern University School of Law, in April1949.Few are the eccentrics who cling to the Blackstonian myth that "judges donot create, but merely find the law." The myth is exposed, but the true facts, asis so often the case, are tougher to understand than the fairy tale which theydisplaced. How does the Court make law? Why? In what frame of reference?When? It is to this type of inquiry that Professor Freund's book is addressed.No pretense is made of detailed study of the Court's philosophy, personnel, ormethod. The three essays contained therein have been selected for the primepurpose of introducing to us the difficult problem of the One and the Many inour judicial system, i.e. one Supreme Court and many states, many courts, andmany organs of government, with this one Supreme Court "speaking withmany, often discontentingly many, voices."The first essay, entitled "Concord and Discord," is perhaps the best from thepoint of view of executing the purpose of the book. The main theme of thisI Holmes, The Common Law i (i88i). For a recent interesting discussion of the Americanjurisprudential transition from mechanistic to sociological, see Commager, The AmericanMind 359-90 (ig5o).THE UNIVERSITY OF CHICAGO LAW REVIEWessay is the attitude of the Court toward that somewhat loosely delimited fieldcalled "civil liberties." To that fundamental theme we have a Court whichpays homage far beyond that ever given, even by Courts who numbered Holmes,Brandeis, Hughes, and Cardozo in their ranks. However, Professor Freundcarefully and objectively unfolds the cross-currents of discord that mar theharmony of the main theme. Truly the light of liberalism sends its shafts inmany directions. While all the present members of the Court could be put downas men who value human rights or personal liberty above the right of property,with reference to the permissible impact of the regulatory powers of the state,2the problem is not that simple. The choice in a particular case is never presentedin such an "either-or" frame of reference. The choice is rarely between blackand white but more usually hidden in a vast spectrum of values and policydecisions. Civil liberties are to be preserved, yes, but their preservation in aparticular case may necessitate examination of the nature of our federalism,the due accommodation of state legislative policies, the observation of pro-cedural regularity, and other judicial tasks equally complex to resolve.Thus, we see a Court which wrestles with the problem of reconciling the ag-gressive liberties of speech, publication, and practice of religion with the pas-sive liberties-the rights of privacy and private belief. On the whole, the Courthas been more accommodating to the aggressive liberties, with the Jehovah'sWitnesses cases,3 Terminiello v. Chicago,4 and Saia v. New York s illustrating thedegree thereof. On the other hand, the right of privacy in the sense of protectionfrom unreasonable search and seizure has been supported only in waveringfashion by the Court. It is interesting to note how one of the most vigorous sup-porters of free speech, justice Black, is only lukewarm in his defense of personalimmunity against search and seizure, while Justice Frankfurter evens up thescore in a vice-versa switch.6 Clearly the Court protects civil liberties, but whichone in any given case is something else again.The second theme of discord developed by Professor Freund is the dis-2 While their number has shrunk, their voices are yet heard. See, e.g., Barrett, review ofFrank, Courts on Trial, i9 Fordham L. Rev. 117, 1i8 (1950). However, adult realization thatthe Supreme Court perforce must affect policy and make law in the positive law sense doesnot conflict with the Thomistic theory of natural law, viz., that there are immutable principlesof justice binding everywhere on all men. It is when the Thomistic philosophical natural lawtheory is perverted to serve materialistic laissez faire ends that an apparent clash arises betweendefenders of the present Supreme Court and the proponents of Herbert Spencer revisited.3 Consult Scanlan, The Passing of Mr. Justice Murphy-The Conscience of a Court, 25Notre Dame Lawyer 7, 14-18 (1949).4 337 U.S. 1 (i949). s 3 3 4 U.S. 558 (1948).6 This reviewer has his own beliefs as to why this occurs. Justice Black, former police courtjudge and the grand inquisitor of the Black Senate investigating committee, has an under-standable sympathy, born of practical experience, with the difficulties of official attempts toprocure the information necessary to govern, judge, or arrest. Justice Frankfurter, the activeacademician of Sacco and Vanzetti memory, does not, but on the contrary undoubtedlycarries a psychological, as well as a philosophical, bias toward any laxity of procedural safe-guards in the field of criminal law.BOOK REVIEWSharmony which exists among the members of the Court concerning the correctapplication of the famous "clear and present danger" test inherited from Jus-tice Holmes as the constitutional formula for determining where the right offree speech ends and permissible legislative restriction of it begins. Like all legalformulas and rules, the "clear and present danger" formula means differentthings to different men. And so it is with the present Supreme Court. As Pro-fessor Freund points out, it is no surprise that those judges who are partial tothe "aggressive liberties" are also quite willing to apply the "clear and presentdanger" rule in areas where its application is not too readily apparent, such asin determining the permissible scope of the judicial contempt power, or theallowable area of political activity on the part of government employees. Con-trariwise, the judicial defenders of the "passive" virtues, protest against theuse here of the "clear and present danger" test, and remind us that axiomaticapplication of Holmes' felicitous phrase is no substitute for the intelligent valuejudgments that must be made from case to case. As the case of the convictedCommunists approaches the Supreme Court, Professor Freund's inquiries hereserve to set the scene for the profound judgment that must soon be made, i.e.,the judicial demarcation of where provocative, deceitful, but free speech ends,and seditious conspiracy begins-no easy line-marking job, but one that canbe better performed if judicial over-simplication is avoided by both the deter-mined protectors of free speech and the equally determined defenders of ortho-doxy and the Republic.A final disharmonious note pervades the Court's outward allegiance to civilliberty. That is found in the conflicting attitudes taken toward the relationshipof the Fourteenth Amendment and the Bill of Rights. Does the ideal of federal-ism and the Supreme Court's deference toward state legislative policies andcriminal procedure explain the present personalized "natural law" approach ofa majority of the Court? Does the Fourteenth Amendment embrace only the"fundamental principles of justice" as each individual judge sees them, or isJustice Black closer to a rule which promotes certainty along with fairness whenhe argues that the original congressional intention behind the FourteenthAmendment was the incorporation of the Bill of Rights? Professor Freundbrings these interrogatories to the reader in an illuminating manner, althoughthe reviewer wishes he had made reference to still another view of the matter.The late Justice Murphy and the late Justice Rutledge advanced a third view,namely, the Fourteenth Amendment incorporates the Bill of Rights, but itdoesn't stop there; we have learned a few things since 1791.7 In dosing his dis-7 Interestingly enough, each of the three theories rests on a natural law basis-the ma-jority's theory, avowedly so. And since the Bill of Rights has its philosophical base in naturallaw theory, Justice Black's view to that extent has natural law to thank. Also, the advancedposition of Justice Murphy and Justice Rutledge rests on natural law foundations, broughtup to date by taking into consideration the constitutional experiences of i6o years. Those whoclaim that the present Supreme Court has abandoned "natural law" theories are either verymuch in error, or, as is more likely the case, they are referring to the economic "natural law"of Darwin, Spencer and Sumner.820 THE UNIVERSITY OF CHICAGO LAW REVIEWcussion of this phase of his book Professor Freund reminds us that the heat andacrimony engendered by the disagreements of the Court in the field of civilliberties are not to be taken as evidence of a Great Divide. The ideal is a unani-mous one, its application is the source of the friction. But friction is the advo-cate's meat and Professor Freund has given us some nice chunks to masticate.His second essay is one on Justice Brandeis. This reviewer believes that itwas given in the hope of exposing the over-simplification of labeling a judge asa "liberal" or a "conservative" and hoping by that approach to have furnishedan index of his opinions. Brandeis certainly could be referred to as a "liberal'judge; the little minds who almost blocked his nomination would have beenwilling to concede that, and then some. Yet, as Professor Freund points out, ifwe stopped there we would certainly be at a loss to explain Brandeis, the sticklerfor procedural regularity, the high priest of a harmonious federalism, the joyfulexecutioner of Swift v. Tyson,g and the proud creator of Brie R. Co. v. Thomp-kins.9 Nor could it serve to explain his complete support of the Court against apresident's scheme to expand it when it seemed such an obstacle to the demo-cratic expression of the will of the people. Equally would it be unavailing inunderstanding his concept of stare decisis in interpreting statutes, a conceptthat he embraced so completely that it probably propelled him to reverse Swiftv..Tyson on constitutional grounds, rather than resting with a decision whichsaid merely that the Rules of Decision Act had been erroneously interpreted.The lesson the reader could learn from this second essay is one that should bevery appropriate in these days of political name-calling and muck-raking.The last essay entitled "Judge and Company" is an abortive effort to setforth some of the techniques and approaches which might be useful to the con-stitutional law advocate. This reviewer has no quarrel with this objective, norwith the essay as far as it goes. However, even granting that the book is pur-posely limited in the subject matter attempted, it does appear that this essayadds little to the previous two. Moreover, the recent appearance of two othercomplete works touching on appellate advocacy before the high court 0 per-haps make this last essay seem more trite than otherwise might be the case.There are two points touched upon in the last essay which bear repetition,however. Professor Freund calls attention to the lack of, and the inaccessibilityof adequate legislative histories of state legislation. State legislative historymaterials have too long been in a disorganized and unsatisfactory state. Im-provement in this field is more than ever demanded, especially when we con-sider Professor Freund's concluding observation. With the increasing reluctanceof the Supreme Court to declare legislation unconstitutional under the dueprocess clause unless basic civil liberties are involved, the result may be a cor-8 41 U.S. r, 16 Pet. (U.S.) 1 (1842).9304 U.S. 64 (r938).xoWeiner, Effective Appellate Advocacy (195o); Gressman and Stem, Supreme CourtPractice (1950).BOOK REVIEWS 821responding increase in the substantive due process on the state level. A recentarticle has recalled our attention to this area.Y This reviewer realizes that ourconstitutional history has demonstrated that, strangely enough, Hamiltonian-ism and John Marshallism have served liberalism well; and that paradoxically,too, Jefferson's "states rights" theory has been perverted to the service ofmoney changers. He hopes, however, that state "substantive due process" willnot provide the refuge afforded by the pre-Roosevelt Court for economic laissezfaire masquerading in the disarming robes of "natural law" (Darwinian style).Professor Freund has presented us with a well-written stimulating, and objec-tive work. What it lacks in integration of subject matter, it more than makes upin reader interest and appeal. I dare say neither the partisans of the Right northe Left will particularly appreciate his effort. The Right will writhe at thecavalier way in which he relegates the gilded age of judicial hyper-protectionof "property rights" to the discard heap. The Left will be equally uncomfort-able with his picture of a Supreme Court to whom "civil liberty" doesn'talways mean "civil license." Those, however, who wish to understand more in-teligently the "cult of the robe" (as Judge Jerome Frank has called it), andwho prefer to have knowledge of the workings of a judiciary in a democracyrather than merely to give emotional obeisance thereto, will enjoy this book,and perhaps be enlightened. A recent writer has suggested that "the nature ofthe American government depends upon the opinion and the principles of themen who constitute the Supreme Court.... Since they are men, not gods, theyare presumably subject to mundane influence, and a study of American govern-ment must therefore include a study of the tastes and temptations of judges."12This still may come as a shock to some. Whatever the virtue of "shock treat-ment," Professor Freund's work is an excellent initial dose for those who wisheventually to attain mature understanding of American constitutional law inaction.ALED L. ScxLAN*War and Civilization. By Arnold J. Toynbee, selected by Albert V. FowlerLondon: Oxford University Press, 1950. Pp. xiv, 165. $2.50.A Plan for Peace. By Grenville Clark. New York: Harper & Bros., 1950. Pp. xii,83. $1.00.In a preface to Mr. Fowler's selections, Professor Toynbee expresses theopinion that war explains the breakdowns of civilizations. To one reader of thevolumes of Mr. Toynbee's Study of History, from which the selections are made,the observation causes difficulty.-: Paulsen, "Natural Rights"--A Constitutional Doctrine in Indiana, 25 Ind. L.J. 123(rgo).12 Agar, The Price of Union i94 (I950).* Legislative Attorney, Office of Counsel, Secretary of Defense.

Review of \u3ci\u3eOn Understanding the Supreme Court\u3c/i\u3e by Paul A. Freund

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2715&amp;context=uclrev

Review of \u3ci\u3eOn Understanding the Supreme Court\u3c/i\u3e by Paul A. Freund

Abstract

Similar works

Full text

Available Versions

University of Chicago Law School: Chicago Unbound