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).

² Mason, , “Myth and Reality in Supreme Court Decisions,” Virginia Law Review, 48 (1962), 1385CrossRefGoogle Scholar; and “The Supreme Court: Temple and Forum,” Yale Review, 49 (Summer 1959), 524Google Scholar.

³ Brown v. Allen, 344 U.S. 443 (1953) 540Google Scholar.

⁴ American Bar Association Journal, 57 (12, 1971), 1209–10Google Scholar.

⁵ Taft, William Howard, “Mr. Wilson and the Campaign,” Yale Review, 10 (10, 1920), 19–20Google Scholar.

⁶ Mason, , William Howard Taft: Chief Justice (New York, 1964), chap. 10Google Scholar.

⁷ Mason, , “Pyrrhic Victory: The Defeat of Abe Fortas,” Virginia Quarterly Review, 45 (Winter 1969), 19–28Google Scholar.

⁸ Warren, Charles, The Supreme Court in United States History, 3 vols. (Boston, 1922), 1: 294Google Scholar.

⁹ Dutton v. Evans, 400 U.S. 74 (1970)Google Scholar.

¹⁰ Pointer v. Texas, 380 U.S. 400 (1965)Google Scholar.

¹¹ Miranda v. Arizona, 384 U.S. 436 (1966)Google Scholar. Not content with operating within the narrow confines that might have been used in deciding the case, the chief justice promulgated a new charter of rights for criminal suspects. They were to be advised of their right to be silent; that any statement made might be used against them, and that they had the right to consult a lawyer, who would be provided for them if they could not afford one.

¹² Ibid., p. 753, quoting Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (1942).

¹³ Harris v. New York, 401 U.S. 22 (1971)Google Scholar.

¹⁴ New York Times v. United States, 403 U.S. 713 (1971)Google Scholar.

¹⁵ Ibid., at p. 844.

¹⁶ New York Times, 6 July 1971, p. 15, col. 2.

¹⁷ Hughes, Charles Evans, The Supreme Court of the United States (New York, 1928), pp. 75–76Google Scholar.

¹⁸ Howe, M.D., ed., Holmes-Laski Letters, 2 vols. (New York, 1963), 1: 336Google Scholar.

¹⁹ Quoted in Mason, Alpheus T. and Beaney, William M., American Constitutional Law, 5th ed. (Englewood Cliffs, N.J., 1972), p. xlGoogle Scholar.

²⁰ Proceedings American Law Institute, 47th Annual Meeting (Washington, D.C.), pp. 26–27Google Scholar.

²¹ Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969)Google Scholar; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)Google Scholar.

²² Wright v. Emporia, 407 U.S. 451 (1972), dissenting p. 479Google Scholar.

²³ Milliken v. Bradley, 418 U.S. 717 (1974), 782Google Scholar.

²⁴ Franks v. Bowman Transportation Co., 427 U.S. 273 (1976), p. 281Google Scholar.

²⁵ 426 U.S. 229 (1976).

²⁶ McDonald v. Santa Fe Trail Transportation Co., 424 U.S. 952 (1976)Google Scholar.

²⁷ Lindmark Associates Inc. v. Willingboro, 52 L. Ed. 2d 155 (1977)Google Scholar.

²⁸ Milliken v. Bradley, 53 L, Ed. 2d 745 (1977)Google Scholar.

²⁹ Connor v. Williams, 404 U.S. 549 (1972)Google Scholar; Mahan v. Howell, 404 U.S. 1201 (1971); Gaffney v. Cummings, 412 U.S. 735 (1973)Google Scholar; White v. Weiser, 412 U.S. 183 (1972)Google Scholar.

In Connor v. Finch, decided May 31, 1977, the justices, voting 7 to 1, demonstrated continuing sensitivity to the “one man, one vote” principle. Justice Rehnquist did not participate.

³⁰ Johnson v. Louisiana, 406 U.S. 356 (1972)Google Scholar; Apodaca v. Oregon, 406 U.S. 404 (1972)Google Scholar.

³¹ U.S. v. Robinson, 414 U.S. 218, 239, 248 (1973)Google Scholar.

³² U.S. v. Santanta, 427 U.S. 38 (1976)Google Scholar.

³³ Hampton v. U.S., 425 U.S. 484 (1976)Google Scholar.

³⁴ Michigan v. Mosley, 423 U.S. 96 (1975), 118Google Scholar.

³⁵ 420 U.S. 714 (1975).

³⁶ Ibid., p. 719.

³⁷ Ibid., p. 726.

³⁸ U.S. v. Janis, 428 U.S. 433 (1976), 460Google Scholar.

³⁹ 412 U.S. 218 (1973).

⁴⁰ Stone v. Powell, 428 U.S. 465 (1976)Google Scholar. See Wilkes, Donald E. Jr, “The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court,” Ky. L. J., 62 (1974), 463Google Scholar; Wilkes, , “More on the New Federalism in Criminal Procedure,” Ky. L. J., 63 (1975), 873Google Scholar; Mosk, Stanley, “The New States Rights,” Calif. L. Enforcement 10 (1976), 81Google Scholar.

⁴¹ U.S. v. Martinez, 428 U.S. 543 (1976), 467Google Scholar.

⁴² Brewer v. Williams, 51 L. Ed. 2d 421 (1977)Google Scholar.

⁴³ Morrissey v. Brewer, 408 U.S. 471 (1972)Google Scholar.

⁴⁴ 372 U.S. 335 (1963).

⁴⁵ Argersinger v. Hamlin, 407 U.S. 25 (1972)Google Scholar.

⁴⁶ Furman v. Georgia, 408 U.S. 238 (1972)Google Scholar.

⁴⁷ Gregg v. Georgia, 428 U.S. 153 (1976)Google Scholar.

⁴⁸ Coker v. Georgia, 53 L. Ed. 2d 982 (1977)Google Scholar.

⁴⁹ Ingraham v. Wright, 51 L. Ed. 2d 711 (1977)Google Scholar.

⁵⁰ 408 U.S. 665 (1972).

⁵¹ Ibid., p. 725.

⁵² Ibid., 681.

⁵³ Ibid., p. 709.

⁵⁴ Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). For a perceptive commentary, see Stephenson, D. Grier Jr, “The Mild Magistracy of the Law: U.S. v. Richard Nixon,” Intellect, 103 (12, 1976), 288–92Google Scholar.

⁵⁵ Buckley v. Valeo, 424 U.S. 1 (1976)Google Scholar.

⁵⁶ Wooley v. Maynard, 51 L. Ed. 2d 752 (1977)Google Scholar.

⁵⁷ Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976)Google Scholar.

⁵⁸ Bates v. State of Arizona, 53 L. Ed. 2d 810 (1977)Google Scholar.

⁵⁹ Carey v. Population Services International, 52 L. Ed. 2d 675 (1977)Google Scholar.

⁶⁰ Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)Google Scholar.

⁶¹ U.S. v. Miller, 425 U.S. 435 (1976)Google Scholar.

⁶² 424 U.S. 448 (1976).

⁶³ Doe v. Commonwealth's Attorney, 403 F. Supp. 1199. 96 Sup. Ct. 1489 (1976).

⁶⁴ Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)Google Scholar.

⁶⁵ Adams v. Williams, 407 U.S. 143 (1972)Google Scholar.

⁶⁶ 424 U.S. 693 (1976), 697, 702.

⁶⁷ Ibid., p. 735.

⁶⁸ Rizzo v. Good, 423 U.S. 362 (1976), 378Google Scholar.

⁶⁹ New York Times, 9 April 1976, p. 1, col. 8.

⁷⁰ Ibid., 18 May 1977, Sec. IV, p. 18, col. 3.

⁷¹ Ibid., 12 August 1976.

⁷² Brennan, William J. Jr, “State Constitutions and the Protection of Individual Rights,” Harvard Law Review, 90 (01, 1977), 489, 495, 503CrossRefGoogle Scholar.

⁷³ Raoul Berger, quoted by Weaver, Warren Jr, in the New York Times, 31 10 1977, p. 19, col. 1Google Scholar. For balanced analyses of the Burger Court's constitutional jurisprudence, see Howard, A.E. Dick, “State Courts and Constitutional Rights in the Day of the Burger Court,” The George Mason Lectures (Williamsburg, Va., 1977)Google Scholar; Steamer, Robert J., “Contemporary Supreme Court Directions in Civil Liberties,” Political Science Quarterly, 92 (Fall 1977), 425–42CrossRefGoogle Scholar.

⁷⁴ United States v. United States District Court, 407 U.S. 297 (1972), 312, 314, 317, 320Google Scholar.

⁷⁵ United States v. Nixon, 418 U.S. 683 (1974), 703, 706, 712–13Google Scholar. Judicial independence may also be observed in the Pentagon Papers and impoundment cases. See Train v. City of New York, 420 U.S. 35 (1975)Google Scholar.

⁷⁶ US. v. Nixon, p. 703.

⁷⁷ Fox, Judge Noel in Murphy v. Ford, 390 F. Supp. (1975) 1372–73 (W.D. Mich. 1975)Google Scholar.

⁷⁸ Goldberg, Arthur J., Equal Justice: The Supreme Court in the Warren Era (Evanston, III., 1971), pp. 41–42, 61, 90, 93Google Scholar. For elaboration of Goldberg's thesis, see Mason, , The Supreme Court: Palladium of Freedom (Ann Arbor, 1962), chap. 6Google Scholar. For contrasting views, see Bickel, Alexander; The Supreme Court and the Idea of Progress (New York, 1970)Google Scholar; Kurland, Philip, Politics, the Constitution and the Warren Court (Chicago, 1970)Google Scholar; Robert G. McCloskey, “Economic Due Process and the Supreme Court,” reprinted in L.W. Levy, ed., American Constitutional Law (New York, 1966), pp. 155–87; and Glazer, Nathan, “Toward an Imperial Judiciary,” The Public Interest, 41 (Fall 1975)Google Scholar; Funston, Richard, “The Double Standard of Constitutional Protection,” Political Science Quarterly, 90 (Summer 1975), 261–88CrossRefGoogle Scholar.

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.

⁷⁹ Dissenting in U.S. v. Rabinowitz, 339 U.S. 56 (1950), 86Google Scholar.

⁸⁰ Orozo v. Texas, 394 U.S. 311 (1969), 315Google Scholar.

⁸¹ Mitchell v. W.T. Grant, 416 U.S. 600 (1974), 636Google Scholar.

⁸² Runyon v. McCrary, 427 U.S. 160 (1976)Google Scholar.

⁸³ 392 U.S. 409 (1968).

⁸⁴ Runyon v. McCrary, p. 191.

⁸⁵ Frankfurter, Felix, Of Law and Men: Papers and Addresses, 1939–1956, p. 133Google Scholar. Certain other judges hold that the robe works no changes at all. See Mason, , The Supeme Court from Taft to Warren (1968), p. 218Google Scholar.

⁸⁶ Quoted in Mason, and Beaney, , American Constitutional Law, pp. xxv–xxviGoogle Scholar.

⁸⁷ Holmes, O. W., Collected Legal Papers (New York, 1920), p. 139Google Scholar.

⁸⁸ Cann, Edmond, ed., Supreme Court and the Supreme Law (Bloomington, 1954), p. 19Google Scholar.

⁸⁹ Reflecting on the judicial blockade of 1935–36 against government power to regulate the economy, Archibald Cox writes: “There was a sense that the Justices made a mess of things when they attempted to enlarge their orbit, as they did in resisting government regulation of the economy” (Cox, Archibald, The Role of the Supreme Court in American Government [New York, 1976], p. 34Google Scholar).

⁹⁰ Endorsing this crusade, Anthony Lewis observes: “The 15 years since Warren became Chief Justice have been years of legal revolution. In that time the Supreme Court has brought about more social change than most Congresses and most Presidents.” Lewis, Anthony, “A Man Born to Act, Not to Muse,” New York Times Magazine, 30 06 1968Google Scholar.

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).

⁹¹ Cox, Archibald, The Warren Court: Constitutional Decision as an Instrument of Reform (Cambridge, Mass., 1968), pp. 39–40CrossRefGoogle Scholar.

⁹² Berger, Raoul, New York Times, 31 10 1977, p. 19, col. 1Google Scholar. See also Berger, , Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass., 1977)Google Scholar. In 1932, on the eve of the Court's stubborn defiance of the New Deal, Boudin, Louis B. authored a book entitled Government by Judiciary, 2 vols. (New York, 1968Google Scholar; reprint of 1932 edition).

⁹³ Lusky, Louis, By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution (Charlottesville, Va., 1975)Google Scholar.

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

⁹⁵ Annals of Congress (1789–1790) (Washington, 1834), 432, 439Google Scholar.

⁹⁶ Lochner v. N.Y., 198 U.S. 45 (1905), 76Google Scholar.

⁹⁷ Mr. Justice Holmes and the Constitution (1938), p. 51.

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.