NCJ Number
14920
Date Published
1970
Length
222 pages
Annotation
CRITIQUE OF THE WARREN COURT BASED ON THE PREMISES THAT THE COURT WAS OVERCONFIDENT IN ITSELF AND IN THE ROLE OF THE MAJORITY AND THAT THE SUPREME COURT IS AN INAPPROPRIATE PLACE TO MAKE SOCIAL POLICY.
Abstract
THE AUTHOR MAINTAINS THAT THE JUDICIAL PROCESS IS TOO PRINCIPLE-PRONE AND PRINCIPLE-BOUND--IT HAS TO BE, THERE IS NO OTHER JUSITIFICATION OR EXPLANATION FOR THE ROLE IT PLAYS. IT IS ALSO TOO REMOTE FOR CONDITIONS, AND DEALS, CASE BY CASE, WITH TOO NARROW A SLICE OF REALITY. IT IS NOT ACCESSIBLE TO ALL THE VARIED INTERESTS THAT ARE IN PLAY IN ANY DECISION OF GREAT CONSEQUENCE. IT IS, VERY PROPERLY, INDEPENDENT. IT IS PASSIVE. IT HAS DIFFICULTY CONTROLLING THE STAGES BY WHICH IT APPROACHES A PROBLEM. IT RUSHES FORWARD TOO FAST, OR IT LAGS; ITS PACE HARDLY EVER SEEMS JUST RIGHT. FOR ALL THESE REASONS, IT IS, IN A VAST, COMPLEX, CHANGEABLE SOCIETY, A MOST UNSUITABLE INSTRUMENT FOR THE FORMATION OF POLICY. BUT WHILE THE OTHER INSITUTIONS MAY BE, THE COURT IS NOT THE PLACE FOR THE HEEDLESS BREAK WITH THE PAST, NOT THE PLACE FOR THE HALF LOAF THAT IS BETTER THAN NONE, FOR THE SPLIT DIFFERENCE AND OTHER ARBITRARY CHOICES, OR FOR THE ACTION SUPPORTED BY NOTHING BUT RHETORIC, SENTIMENT, ANGER, OR PREJUDICE. THE COURT IS THE PLACE FOR PRINCIPLED JUDGMENT, DISCIPLINED BY THE METHOD OF REASON FAMILIAR TO THE DISCOURSE OF MORAL PHILOSOPHY, AND IN CONSTITUTIONAL ADJUDICATION, THE PLACE ONLY FOR THAT, OR ELSE ITS INSULATION FOR THE POLITICAL PROCESS IS INEXPLICABLE. (AUTHOR ABSTRACT)