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Conference Proceeding


Judicial Review: Its Role in Intergovernmental Relations: A Symposium: For Every Justice, Judicial Deference Is a Sometime Thing, 50 GEO. L. REV. 653 (1962)


For more years than I care to contemplate—nigh onto thirty—I have been teaching and writing about constitutional law with a slant that most of my fellows in the field consider at best unscholarly, at worst downright indecent. According to that slant, to put it briefly and unsubtly, any study of any aspect of constitutional law which leans primarily on the rightness or wrongness or in-between-ness of conflicting political and jurisprudential concepts, pretty much apart from the men who mouth those concepts, is almost wholly worthless for purposes of analysis or prediction or anything else except perhaps argumentation in an atmosphere of academic unreality. Government by judiciary, as Boudin once called it, is—and is most markedly where constitutional questions are concerned—far more a government of men, not laws, than of laws, not men. Nor activism nor self-restraint nor federal-state relationships nor absolute constitutional commands lead a Sutherland to vote against the New Deal, a Brandeis for wage and hour laws, a Frankfurter against state right to counsel, a Black for freedom of assembly—nor do these easy abstract theories explain why each so voted. From John Jay on to Potter Stewart the vote of each Supreme Court Justice, however rationalized à la mode, however fitted afterward into the pigeonhole of some pretty politico-juridical principle, has rather been the result of a vast complex of personal factors—temperament, background, education, economic status, pre-Court career—of whose influence on his thinking even the most sophisticated of Justices can never be wholly aware. Even if Sutherland did believe, quite apart from his laissez faire economic creed, in a strongly activist judiciary as a matter of abstract political principle, why did he believe in it, what other values would he sometimes let overweigh it, and again why? Even if Brandeis did believe, quite apart from his sympathy for social legislation, in the abstract propriety of judicial self-restraint, why did he believe in it, when would he sometimes choose to abandon it, and why? How can John Marshall's readings of the commerce clause and the contracts clause make any sense, for all his eloquent logomachy, except in terms of his own personal commitment to the commercial-creditor class; and how can Roger Taney's surface inconsistencies in choosing between federal and state supremacy be reconciled except by seeing him as the consistent spokesman of the agricultural, slave-holding South? Only by examining the Justices individually as whole human beings, by probing beneath the protective shell of principles expressed in opinions, to try to find what made or makes each Justice really tick, can past decisions be explained without constant contradiction and future decisions predicted with a surprising degree of accuracy. That, at any rate, has been my maverick approach to the study of constitutional law for more than a quarter century.

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