Judicial Modesty Political Reality and Preferred Position

calculations of the Court's democratic responsibility cannot get us very far. Much of the current thinking about the Court has its base in the New Deal experience, and the principal complaint arising out of that experience was the alleged lack of democratic restraints on the Court. The consequences of the New Deal fight tend of course to prove just the reverse, but we need not stop there. The average post-Civil War Justice has sat only thirteen and a half years. 8 Since a President has the opportunity of appointing a new Justice on the average of every twentytwo months, it seems unlikely that the Court could hold out very long against entrenched majority sentiment. 9 President Roosevelt's problem was thus exceptional and the sudden and radical shift in the Court's position in 1937 simply represents a variation in the more gradual change to be statistically anticipated. 0 With a bow to Mr. Dooley it should be said here that, even aside from the high turnover of the Justices, the Court does follow the election returns at least in terms of broad responses to popular desires.71 Paradoxically enough, the nonelective and formally nonpolitical character of the Court accentuates its sensitivity to public opinion. We have noted that other institutions of the central government tend to rest upon relatively independent and cohesive clienteles. The Court does not have the opportunity to control continuously the kind of active bounty-creating programs which serve to develop grass roots support. Thus, without a unified body of special supporters, the Court lacks an anchor against the shifting winds of national political sentiment. Several commentators have pointed out that the Court's duty to square its decisions with reason and authority is the key to its accountability and responsibility to the public.72 In other words, the Justices' work might well be viewed as a continuous attempt to convince the public that the Court's decisions are constitutionally legitimate. It may be naive to believe that the Court can be wholly limited by a self-interpreted Constitution.73 However, it is certainly equally naive to believe that the Justices are totally unrestrained by provisions to which they must continuously and publicly pay homage. Also, when the Court decides a specific case, its opinion is a specific document, and that document records the position of nine specific men.74 08 Black, The People and the Court 180 (1960). 69 Dahl, "Decision-Making in a Democracy: The Supreme Court as a National PolicyMaker," 6 J. Pub. Law 279, 284-86 (1957). 70 Id. at 285. 71 Swisher, The Supreme Court in Modem Role 179-80 (1958). 72 Mason, The Supreme Court from Taft to Warren 212 (1958); Curtis, Law as Large as Life 99-100 (1959). 73 Roche, Judicial Self-Restraint, 49 Am. Pol. Sci. Rev. 761, 763-64 (1955). 74 If the complexities of Dixon-Yates are recalled or an attempt made to locate the HeinOnline -47 Cornell L. Q. 191 1961-1962 CORNELL LAW QUARTERLY The greatest restraint on the Court is of course the judicial process itself. It has become a truism that case-by-case determination limits the Court to occasional and fiegative intervention in the governmental process and excludes many vital areas entirely.75 Even when the Court does exercise review, it does so largely on the sufferance of Congress. The amending process is always available and a determined Congress has rarely found that it cannot, by deft and persistent redrafting, eventually accomplish its end. Professor Peltason has concluded after an examination of the place of courts in the political process that "judicial interpretation of the Constitution is not necessarily any more final than interpretation of a statute." 76 If the problems of the Court's power and responsibility are not so simple as they are sometimes made to appear, neither are its relations to Congress. Since Judge Gibson's day77 the opponents of review have argued that Congress can make determinations of constitutionality as well as the Court, but Judge Gibson's argument is an early specimen of the formalistic approach which seems to plague examinations of review. The decision-making process in Congress is so complex and fractionalized that even if the members of Congress sincerely desired to make a final and "official" determination of constitutionality, they would find it difficult to do so. Congressional statutes, as we have noted, are the product of a series of marginal adjustments and compromises among various semi-independent groups. It is nearly impossible to interject black and white questions like constitutionality into the early stages of such a process. Moreover, when the bargaining has been so nearly completed that a bill reaches the final debate and voting stage, so many commitments have been made that the interjection of a constitutional issue would not only be futile but in many instances appear to be a traitorous repudiation of pre-established agreements. It is, therefore, highly probable that considerations of constitutionality could only take their place among the multitude of other considerations which acquire various weights at various stages of the negotiations depending on how important they appear to any given legislative power holder. This not only means that constitutional questions would be given relatively little exact who, where, or when of any given decision on weapons systems or foreign policy, or for that matter rivers and harbors improvements, the point should be clear. Who is held to a higher standard of democratic responsibility, the Supreme Court or the Chief of the Fish and Wild Life Service preparing a program proposal which will pass through and be altered by the Bureau of the Budget, two legislative committees, two appropriations committees, a conference committee, and the President before the new fish hatchery gets built. 75 See Rostow, supra note 47, at 197-98. 76 Peltason, Federal Courts In The Political Process (1955). 77 See Eakin v. Raub, 12 Serg. & Rawl. 330 (Pa. 1825). [Vol. 47 HeinOnline -47 Cornell L. Q. 192 1961-1962