Jackson advocate. [volume] (Jackson, Miss.) 1939-current, 1958-10-18
across more vital issues.

Take these In the past Few years:
the court restricted the rights of
the FBI; the authority Of bar as
sociations to pass upon qualifica-
tons Of attorneys; the rights of
school boards to discharge teach
ers; extended the application of
the Clayton Act in the dupont
case to vertical combinations there
by limiting the Smith Act among
other matters.
The cries against the court come
from many critics who frequently
have little in common. The signifi-
cant thing is that the present at
tack is cumulative and collective.
Three main developments prob
ably play a part in the situation.
1. Totalitarian aggression has
put the United States under chal-
lenge and has brought a clash be-
tween national security and guar
anteed rights of the individual un-
der the Constitution.
2. The breathless pace of social
development has given new status
to the Negro.
8. The growth of the law itself,
precedent by precedent, almost
automatically insures a clash be-
tween the great citadel of individ-
ual liberties within the high court,
and postwar tendency toward con-
formity and the creation of kind
of garrison society.
In brief, a period of extreme
social change almost inevitably
brings questions of court decisions
and jurisdiction.
Many people have an idea the
court is kind of machine: put the
arguments into it, press the but
ton, and-like UNIVAC - out
comes the answer!
But the high court is not a
simple umpire or arbiter.
Associate Justice Oliver Wendell
Holmes once said:
81 recognize without hesitation
that judges do and must legis-
late, but they can do so only in
terstitially; they are confined from
molar to molecular motions"
And the crisp Yankee jeremiah
Smith who left the Supreme Court
of New Hampshire to join the Har-
ward law faculty: "Do judges make
law? Of course they do. Made some
myself"
This is the anomoly and para
dox of the court. Only simple peo-
pie find the matter simple.
Bar Rises to Defense
The great court is appointed
it is not elected, it is not demo-
cratic, the judges are not answer
able to anybody, and serve for life.
In Americas extraordinary three
part federal government this is,
in a sense, the nondemocratic,
"aristocratic" element (Which
might, by rather far-fetched COM
parison be likened to the stabiliz-
ing force in England of the aris-
tocracy, and so-called Establish
ment.")
1t is this status that, from the
beginning, has brought cycles of
attack on the court.
In the long run the chief defend
err of the court is the bar itself.
Lawyers are better aware than
most that almost any given court
is better than no court at all. The
important thing is it's independ-
ence.
When President Roosevelt tried
to "pack" the court in 1887 the bar
arose, almost to a man, and fought
the proposal ardently and success
fully. In retrospect, it may be
agreed that the conservatism of the
court at that time went too far.
But natural forces corrected the
situation without changing the
court as an institution.
Now the attack is from the other
side. Many critics feel the court
under Chief Justice Earl Warren
may be overwhelming its author
ity. lin fact there is some divi-
sion within the court itself, though
mono of all over desepregatiOn.(