Evening star., 1956-08-27
Role of the Court

ACCORDING 10 MT. 6. +. hlef-
mans letter in the August IL
Star. the only function of the
Supreme Court is to "set up
friction between the various
departments of the Govern
ment in order to avoid tyranny
by any one branch" He says
that even high-school children
know that the role of the
Supreme Court was in no way
outlined by the makers of the
Constitution"
According to the Constitu-
ton, "the judicial power Of
the United States shall be
vested in one Supreme Court,
and in such other inferior
courts as the. Congress may.
from time to time, ordain and
establish" Then Article III
proceeds to give the jurisdic-
tions of the judicial power"
This is not defined, any more
than the executive power or
the legislative power, but
clearly this is a positive func-
ton. The word judicial" as
intelligent high-school children
know, does tell us something
about the role Of the Supreme
Court.
The fact that we have q
written Constitution, said
Chief Justice Marshall in the
famous Marbury VS.. Madison
case. implies that the courts
must rule on whether laws are
in accordance with it, and of
these the Supreme Court is
the final authority. Mr.. Kier-
nan finds this a rather fam
tastic point of view," but it
has been in fact the ruling
point of view in this country
as a result of the tremendous
impact of John Marshall's 35
years as Chief Justice. Where
did Mr.. Herman get the no.
tion that this is something
new which has arisen only
after the courts latest ruling
on racial integration?
OF course, the Supreme
Court is not infallible, as Mr..
Herman is at pains to point
out, nor are its decisions ir-
revocable. This is underlined
by the institution of dissent
ing opinions, some of which
later win out. The Constitu-
ton is binding on the court.
and implies limits to it, as
much as to the other branches.
The court would not have won
the reverence it has got from
the American people if it had
not found its fortress in pub
lie opinion" in the words of
another Chief Justice, Charles
Evans Hughes. 1T has no in
f1uence over either the sword
or the purse; no direction
either of the strength or of
the wealth of society; and can
take no active resolution what
ever. 1t may truly be said to
have neither force or will. but
merely Judgment" said Alex-
ander Hamilton. in one of the
Federalist papers.
Mr.. Herman mentions the
Dred Scott case. What hap
pened here? Judge Taney held
that the specific clause in the
Constitution giving Congress
the power to regulate terri
tories Of the United States
could not authorize the pas
sage Of the Missouri Com
promise since this clause was
meant by the trainers of the
Constitution to be limited to
territories which the Govern
ment possessed at the time of
the adoption Of the Constitu-
ton. Remember that this was
a five-to-four decision and it
was abysmally wrong. If spir-
It's can know anger, Marshall's
soul must have been wrathful
at such blasphemy against his
living Constitution" Abra-
nam Lincoln condemned this
decision just as today he would
praise the Supreme Court for
Keeping the Constitution liv-
ing and strong.
Nor was this fiagrant at
tempt TO straitjacket the Con-
stitution typical OF Chief JUS
tice Taney himself. Despite
this one blot on his career, he
TOO was a great Judge, and
soon was back on the course
laid out by John Marshall.
He established the U. S. su-
preme Court as truly SUI
preme. not because the Fed
eral Government had made It
so. and not because the States
had made 1t so. but because
the Constitution makes II so.
Now II all Mr.. Herman wants
is to be assured Of the right
TO call unfair or unjust or
foolish" the unanimous opin-
ion Of the Supreme Court Of
May IL. 1854. declaring un-