Task of Maintaining Our Liberti'es:

he Role of the Jud;iciary

•· b Robert H. Jackson • Associate Justice of the Supreme Court of the United States I ! '

• Our traditional freedoms, says Mr. Justice JackJon, "are less in danger of any cial office is the least representative

.< sudden overthrow than of being gradually bartereq or traded _for something else on in our system, that the litigation proc­ which the people place a higher current value". Ahd he concludes that, in the last ess is narrowed by serious limitations analysis, it must be the people, rather than the cou:r!s and iudges, who permanently and that judicial power normally is '!guard liberty. The following paper was the princip~l address at the dinner in honor exerted with retroactive effect, I should not suppose it open to doubt ii of the Judiciary pf the United States, sponsored j~intly by the Section of Judicial that overstepping or irresponsible Administration, Conference of Chief Justices and th~ Notional Conference of Judicial I 'use of judicial power is as much an · Council~, on August 24, during the Diamond Jubilee Meeting of the Association in evil as lawlessness in either of Boston. the other branches of government.

: • There is a lesson for us in the frankly in Parliament and is not How Can We Tell runique and ancient office of Lord tempted to disguise a speech as a Judicial from :Political Power? High Chancellor. Our forefathers judicial opinion. He may satisfy any However, siAce all interpretation is a understood, on high authority, that urge tG> improvise new remedies or making of decisional law, the ques­ England had strictly separated ex­ make ifmovations in the law by spon­ tion which underlies this old con­ ecutive, legislative and judicial func­ soring legislation instead of reaching troversy is by what sign shall we tions. Thinking well of the example, that eryd through the fiction· that he know the limits of the power which they made separation of these pow­ merely! is construing a constitution or is given to the courts as distinguished ers the basic principle of our Con­ interp~eting a statute. from political power not entrusted stitution. Their misunderstanding is In t~e United States, controversy to them. Chief Justice Marshall for apparent. The Lord High Chancel­ as to ~he bounds of judicial law­ the Court penned this definition: lor is at once the highest judicial making has persistently divided ... Judicial power, as contradistin­ officer in the realm of Elizabeth II, judicia,!, professional and public guished from the power of the laws, a , minister in the cabinet of Sir opinioi;l. Many political leaders and has no existence. Courts are the mere Winston Churchill's government, large s¢gments of our people, though instruments of the law, and can will and the presiding officer of the upper of opp~site schools at different times, nothing. When they are said to ex­ ercise a discretion, it is a mere legal legislative house. It would not be urge a r·judicial activism'' to take the discretion, a discretion to be exercised ·impossible for him faithfully to initiati!ve in bringing about changes in discerning the course prescribed by 'follow a precedent (that still being in fundamental law. On the other law; and, when that is discerned, it is a custom in England), though he hand, !Presidents Jefferson, Jackson the duty of the Court to follow it. regarded it as outmoded, and then and Lincoln each in his time com­ Judicial power is never exercised for the purpose of giving effect to the will to sponsor and manage in the House plained that the Supreme Court was of the Judge; always for the purpose o! Lords a bill to correct the mischief invading the legislative field. More of giving effect to the will of the Legis­ he had perpetuated as a judge. Per- , recently, President Roosevelt stated lature; or, in other words, to the will haps this combination of judicial, his grievance to be that "The Cou:rt of the law. legislative and executive powers has has b~en acting not as a judicial But does this do much to tell the been found acceptable because it is body, ~ut as a policy-making body." profession what concrete factors ac­ so forthright ·that it invites no sus­ No lone has proposed and, . of tually will shape the judgment o~ picion of dissembling. If the Lord course,: no one can devise a formula any reasonably debatable issue? At Chancellor feels impelled to speak that will insure judicious use of judi­ its least, and probably at its most, it on a policy matter, he may do so cial po-ker. Considering thatthe judi- is a pledge that decisions will be

November, 1953 • Vol. 39 961 reached so far as humanly possible the principle of stare decisis ~as only process by which they must be·· ap: ... , by application of existing and as­ limited application in constitutional , plied." But he sees no remedy, be;,''~ certainable legal criteria and stan­ cases. It might be thought th

1 point of dissenting opinions. Con­ superstition and propose, ! in the knowable and· impersonal standards fusion at the Bar and disagreement name of "realism", to rely upon for ascertaining the scope of our> on the Bench usually l;>egin in lack "facts" to determine decision$. These liberties are lacking, constitutional·; of an accepted system of weights and they would select largely fro~ socio­ law is almost as liquid as legislation,! measures to mete out constitutional and we have little more of a written. , I logy, political science, ps~1 chologv justice. Unfortunately, the conclu- and other nonlegal disciplin~s. Cita­ Constituti9n than does Great Brit-, sion of judges having the highest tions of weekly magazines~ news­ ain. Can safeguards of this character· sense of professional responsibility papers and an endless list ~f popu­ be made steady and strong enough is that the present state of our con­ lar, scientific and profession~! books to withstand what Judge Hand calls stitutional development provides no and reviews are now found in briefs "the interrlperance of faction and the, definitive principles of decision. and opinions. We need not ej:lter the first approaches of despotism"? To. To recount possibl~ sources of controversy -between these !schools, answer, we must consider the-·mo-: guidance is to remind us how inscru­ for this "realism" ,and "natijral jus­ mentum and potency of two distin~' table they all are. We start, of tice" have much in commob; both guishable but closely· related move-i course, with the consti~utional text. shield the judge with an impersonal ments that hold some threat to our But if that makes the answer clear, and probably unconscious ' camou­ traditions. there is no problem. It is the impre­ flage for holdings that emerge out One now is called authoritarian­ cise, obscure or ambiguous state of of the mists of preconceptipn. Un­ ism, a new name for the old practice the text that raises the issue. So fortunately, both also are ~like in by which official authority, uncon­ where do we go next? bewildering the profession i and a­ fined by law, rides roughshod over 1 In a private law case we.would go rousing suspicion that decisibns may individual rights. Our forefathers: to the common law, perhaps, which be reached from latent mot~ves and sought to forestall this kind of op; has served to steady the hand of policies not avowed. i pression by providing that official ac-• generations of judges. For interpre­ I tions affecting life, liberty and prop­ tations of public law we get a little, Standards of Constitutional Dectision erty-be confined to those legislative!t Are Soft and Transient ! but Ol}ly a little, help froin it. While authorized and executed by proce' · the compact is rooted in English Thus we find standards of (i:onstitu­ dures which confom to due process of legal philosophy and embodies many tional decision soft and t~ansient. law. Out of these texts have grown of its presuppositions, it is our doc- Judge Cardozo put it pol~tely in our many decisions that support the , trine that there has been no federal saying that much turns "upon the principle of individual freedom as reception of the common ;law. social or juridical philosophies of opposed to the principle of author­ I suppose we would agree that the the judges who constitute t~e Court ity. most lawyerly and appropriate at one time or another"! Judge But a more subtle form of aggres­ s1;mrce of guidance is any applicable Learned Hand says as to m*ny con­ sion against individual freedom. decision by our predecessors. But for stitutional commands, "~othing comes, not from the usurping office:, over a century it has been settled which by the utmost liber~lity can holder, but from the state itself, doctrine of the Supreme Court that be called interpretation describes the under the philosophy that all else I I 962 American Bar Associotion Journal i I must give way to the interests of the each added function requires an in­ sta te. This movement is likely to calculable number of detailed offlcial progress strictly within the terms of decisions important to the property, legislation and forms of law. Govern­ welfare or perhaps the liberty of ment gradually takes over direction those affected. However, most are of of the total life of the ci tizen-eco­ 5mall consequence to the general nomic, educational, socia l, artistic public and constitute routine, tin> and religious. It regulates each step some duties for often anonymous of one's daily affairs and tolerates no offlcials secure in their tenure and conflicting loyalties or duties. In beyond the reach of aggrieved ci ti­ moderation, many may welcome zens. ThJ t among their mul titude of this as a "planned economy" or "wel­ acts are rnany careless or arbitrary fa re state"; in excess, it becomes the ones we Vlay be sure. Many of them totalitarian state. Our forefathers are imm\me from judicial review, knew, too, the dang-ers of excessive but the yery mass of these decisions government and sought to forestall and th e~r particularized character it by confining the reach of the make review, even if.allowed, spora­ Federal Government to a small seg­ d ic, costly, su perfi.cial and largely ROBERT H. JACKSON ment of the daily life of th.e indivi­ futile. Thus, unless new safeguards no threat lo my person, only proper­ dual or of the local community. It are devised, an admin istration that ty may be directly touched; but I was to be a government of enumer­ is all-emllracing will o£ necessity tend can think o[ no greater affront to my ated powers; and others, unless pro­ to become all-powerful. It will take person. But, even i( we think pro­ hibited, "are reserved to the States considerdble ingenuity and diligence perty sometimes has had undue pro­ respective!y, or to the people". to find •techniques to extend the tection against reg·u lation, the ques­ It seems to me that these tradi-\ protection of individual rights to tion remains, how far so-call ed rights tiona) freedoms are less in danger of ) keep pace with the expansion of of property can be swept away with­ any sudden overthrow than of being power. The Federal Tort Claims out encroaching upon rights of the gradually bartered or traded for Act, to give remedies for injury from 1 person as well. Every foreign state somethin~ else on which the people \ ?ffici~l nfgligence, and the Admin­ that has deprived persotts of funda­ place a lugher current value. In this \ lstratt.ve 1Procedure Act, to assure mental "property rights" has even­ anxiety-ridden time, m any are ready/ n:ore impartial administrative deci­ tually also taken away the rights o[ to exchange· some o_£ th ~ i r liberti:s swns, are examples of measures that the person. T hose who operate in­ for a real or fane1ed mcrease m may helb to prevent government 1 tensive state controls of property security against external foes, internJ from becbming arbitrary and oppres­ have found it necessary soon to take al betrayers or criminals. Others are sive as it grows big. equally intensive state co ntrol of la­ eager to bargain away local controls I t is s~id , by · advocates of the ex­ bor also. Compulsory service, heavy for a federal subsidy. Many will give panding socializa tion, that it chiefly penal ties for abse n reeism, production up individual rights for promise of affects "property dgh ts", as to wh ich q uotas, and all the apparatus of the coll ective advantages. T he real ques­ it is safe to let the legislators and .. I police state, ultimately are intro­ tion posed by the Fascist and Com­ a d mmtstrators have their way so duced upon the sa me arguments munist movements, which together long as j courts uncompromisingly from state necessity that usher in have captivated a large part of the protect r human rights". For pur­ more popular early mcas11res. world's population, is whether, to­ poses of !1a t argum. en t, it is assumed . I arn not alarmed by any "clear day, liberty is regard~cl by the m asses that our ·orefathers were absent-min- and present clang·er" of this whole of men as their most precious posses­ ded whe the citize n's property, as train o[ evils overtaki ng us in the sion. Certainly in the minds of manv well as 1 is person, was asst.rrecl clue U nited States. But in modern condi­ foreign peoples our type of indivi­ process f law. The longer I work tions, to identify and forestaU the dual liberty has been outvalued by wi.th the1e problems t~1e_ less certain "first approaches of despotism" will promises of social welfare and eco­ I am t h ~ t what they JOllled we can take more insight and farsigh t than nomic security, which they want too put as uni:Ier. My equal right to drive i ~ afforded by catchwords or slogans passionately . to be critical of the ~n auto0obile may be_ only a claim car~i:d over from eighteenth-century price. If this indifference to' tradi­ to use of roperty, but 1 t concerns mv poht1cal struggles to settle twentieth­ tional values should sp;ead t~ us, it personal freedom as well. Prohibi­ century constitutional cases. Again I would be the greatest threat to our tion may be looked upon as no more lap the wisdom and experience of own liberties. than a regulation of a particular Judge Hand: Measures of public welf£!.re or kind of rropei·ty, but many took it - .. _. The at~swers lo the questions security are apt to be demanded with­ as rathel person~L I£ officers search. wluch they_ratse demand the <'~pp1·aisal out considering that execution of my hou•r •nd '"" my p•pm, whh and balanclllg of human v;ll ues·which

November. 1953 • Vnl .19 OA:l the~~ are no scales to weigh. Who can formula to identify manifestations view of legislative action disappears. say whether the contributions of one of "the intemperance of l faction" If interpretation is not to. be a mere group may not justify allowing it a from legitimate expression11 of the following of election returns but a preference? How far should the ca­ pable, the shrewd or the strong be al­ will of the majority? The r~concilia­ legal process, the. utmost deference lowed to exploit their powers? When tion of majority rule and /minority that courts can consciously pay to does utterance go beyond persuasion rights involves the most ] debated political trepds is a strong, but re­ and become only incitement? How far theoretical problems in the; philoso­ buttable, presumption inJavor of the are children wards of the state so as phy of free government. ~r. Jeffer­ constitutionality of action by the to justify its intervention in their nur­ ture? What limits should be imposed son asked where else we ni-ay "find political branches. upon the right to inherit? Where does the origin of just powers, !f not in Exclude as far as humanly possible religious freedom end and moral ob­ the majority of the society~ Will it the pressures of group opinion, but liquity begin? As to such questions be in the minority? Or in aq individ­ let us not deceive ourselves; long, one can sometimes say what effect a ual of that minority?" Prtsumably sustained public opinion does influ· proposal will have in fact, just as one can foretell how much money a tax we enforce rights of a minor,ty which ence the process of constitutional will raise and who will pay it. But restrict the majority only ~ecause a interpretation. Each new member when that is done, om! has come only one-time majority will es~ablished ·of the ever-changing personnel of to the kernel of the matter, which is them. May later majorities rescind our courts brings to his task the as­ I the choice between what will be the grant? ' sumptions and accustomed thought gained ~nd what will be lost. Judge Cardozo reminds us that the of a later period. The practical play Who, indeed, can peer far enough words which express our great con­ of the forces of politics is such that into the future to say whether more stitutional generalities "haye a con­ judicial power has often delayed but is to be gained than lost by sustain­ tent and a significance t~at vary never permanently defeated the per­ ing a particular claim of liberty a­ from age to age." If soi should sistent will of a substantial majority,. gainst that of authority? One is not judges apply them accordi~g to the Judicial review in practice therefore always the antithesis of the other. understanding of the g~neration has proved less an obstacle to major­ Liberty is not self-supporting, but is which promulgated them or accord­ ity rule than the followers of Mr. the child of a just and stable legal ing to their meaning to contempor­ Jefferson feared and less a guaranty order. An immunity ""'hich too far aneous society? On this issue\ between of the status quo than the followers undermines government would be the quick and the dead, Mr. Jefferson of Mr. Hamilton hoped. self-destructive, while today's in­ stood squarely on the proposition But for all this, the responsibilities fringement of liberty :may purpose that "the earth belongs to the living of the judges and lawyers for the its long-rlmge preservation. One of generation ...." Followets in his preservation of our scheme of liberty the paradoxes of our history is that political tradition therefore' have in­ under law is heavy, and failure will the administration of Mr. Lincoln, sisted that courts abstain from frus­ not be excused by the difficulties, most prolific in invasion of indivi­ tration of the legislatively tjxpressed weaknesses or uncertainties · that ·I dual rights, is most commemorated will of the current majority~ at least have pointed out in our process. We for its over-all service to human in all except the clearest 1 cases of cannot escape the dangerously vague liberty. It is especially difficult to transgression of the Constitution's by resort to the dangerously rigid. judge between immediate loss and text. But those in the tradition of But we must recognize the pliability ultimate gain to liberty when there Marshall have put a high yalue on of the process for what it is and is an organized movement to make the original purpose and have ac­ strive to keep our liberty under law the rights of some a weapon to des­ corded less weight to contemporary by keeping ourselves under law. The troy the rights of all. A balance suit­ opinion. profession knows that the law is a . able to one time or condition may The judge who would resolve un­ progressive discipline and that each not be valid for others. Not every certainties of interpretationj by con­ decision cannot be a mere copy .of defeat of authority is a gain for scious deference to public I opinion one that went before. It knows that individual freedom, nor every judi­ will find new pitfalls in his! path. Is t.he nature of our task gives much cial rescue of a conv :ct a victory for there any more reliable test pf preva­ latitude to our judgment. But it liberty. lence of a public opinion: or will also has an instinctive dislike for . What is the net gain if the liberty than the election returns? That cer­ rootless or erratic decisions which it of one is sustained to the injury of tainly is its legal manifestation, and expects to be rewritten when the another's? Can we avoid. the logic I see no reason to believe th~t judges wind shifts to another quarter. It i that one man's right must end where have better understanding q£ it than will be satisfied if our conclusions, :J another's right begins, and that any those the public has elected :to repre­ fallible though they are and mis- :;] overextension of the rights of one sent them. To the extent th~t public taken though they may be, represertt ,l group or individual will merely sub­ opinion of the hour is ad~itted to a real respect and aspiration for law, M tract froin that of another? the process of constitutional inter­ a faithful effort to apply law and aiJ Above all, who has a juridical pretation, the basis for jmilicial re- veneration for the work of the great W ' ~l 964 American Bar Association Journal I "ir! ~~ ! minds that have made our legal their liberty. As Attorney General, Marshall said: 'The people made the structure the nearest to a safeguard speaking for the executive branch Constitution, and the people can un­ of freedom that has been devised. of govdnment at the !50th Anni­ make it. It is the creature of their Whatever license of constitutional versary ~f the Supreme Court, I was will, and lives only by their will.' " construction OQ.e group of judges moved to observe: "Judicial func­ So I urge that the lawyer, as a lead­ i niay take in' one direction a later tions, asi we have evolved them, can er of public opinion, can do no group may take in an opposite direc­ be dischlarged only in that kind of greater service to our institutions , tion, as they succeed to office from society ~hich is w'illing to submit than to see that the people are re­ ; different political backgrounds and its conflicts to adjudication and to peatedly warned and kept ever­ atmospheres. The changes brought subordiqate power to reason." That lastingly aware that they must be about in the last score of years are still is my conviction. In the wise and their own guardians of liberty and · some measure of those which a pro­ eloquent words of Chief Justice that they cannot thrust that whole longed future regime could accom­ Hughes:: "Whether that system shall task on a handful of judges. , plish. Only . the people themselves continue ·does not rest with this We whose lives are dedicated to I who make and unmake our political Court b"\It with the people who have freedom under law add a fervent regimes can permanently guard . created that system. As Chief Justice ''Long live the Constitution."

November, 1953 • Vol, 39 965