Milford chronicle., 1958-09-26
IS THE SUPREME COURT
OVERSTEPPING ITS BOUNDS?

The controversy over late decisions and
attitudes of the Supreme Court of the United
States may seem complex and legalistic, but
the fundamental point at issue can be stated
simply. 1t is this: Has the Court gone an
undue distance beyond its proper role as
judicial body and, in effect, made itself leg
islative body-and has it created law in
stead of confining itself to interpreting law?
The majority of the Chief Justices of our
state supreme courts believe that the ans
wer to this question is Yes. They recently
met in conference, and 10-member COM
mittee prepared report on the Supreme
Court which was subsequently approved by
Chief Justices of 36 of the states.
The report, which is phrased in restrain
ed and thoughtful language, observes that
the outstanding development in federal-state
relations since the adoption of the Constitu-
tion has been expansion of the federal pow
er at the expense of state powers. Second
only to this in Importance has been the de-
velopment of the immense power of the Su-
preme Court in both national and state af-
fairs. The Court, the report states, s.. is
not merely the final arbiter of the law; it is
the maker of policy in many major social
and economic fields. 1t is not subject to the
restraints to which legislative body is sub
ject."
The report recognizes that there are
points at which it is difficult to delineate a
line separating the judicial function from
policy-making. However, it goes on, "But if
and when court in constituting and apply
ing a Constitutional provision or a statute
becomes a policy maker, it may leave con-
struction behind and exercise functions
which are essentially legislative in character.
1t is here that we feel the greatest con-
Germ, and it is here that we think the great
est restraint is called for There is nothing
new in urging judicial self-restraint, though
there may be, and we think there is, new need
to urge it"
The fear of the state Chief Justices is
that the federal power may advance to the
virtual extinction of state power. To quote
the report again, "We believe that strong
state and local governments are essential to
the effective functioning of the American
system of federal government; that they
should not be sacrificed needlessly to level
ing and sometimes deadening, uniformity
we think that the overall tendency of
decisions of the Supreme Court over the last
25 years or more has been to press the ex-
tension of federal power and to press it rap
idly we believe :. the Supreme Court
too often has tended to adopt the role of
policymaker without proper judicial re-
straint"
The report implements this view in de-
TAIL and discusses a number of Supreme
OOuIC u0ClSlOLlS Ill VdTlOuS AREAS, ldUOT T0ld-
tionS among them. 1t finds that, "At times
the Supreme Court manifests, or seems to
manifest, an impatience with the slow work
ings of our federal system. That impatience
may extend to an unwillingness to wait for
Congress to make clear its intention to ex-
ercise the powers conferred upon it under
the Constitution. ;"
The report states, as said before, that the
solution lies in restraint by the Court itself
Tv1R xysa yof4 4l,o ~ 10 nf
is incumbent for the highest court ITO be as
sure as is humanity possible that it is adher-
ing to the fundamentals of the Constitution
with regard to the distribution of power and
the separation of powers, and with regard
to the limitations of judicial power which
are implicit in such separation and distri-
button, and that it is not merely giving effect
to what it may deem desirable"
FAVOR En PED 1T .ACC