The New Supreme Court: Prospects and Problems, 45 Tulane Law Review 229 (1970)
"The judiciary," said Hamilton in the 78th Federalist, "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."
It did not turn out quite the way Hamilton imagined. The Court has proved itself capable of taking a few active resolutions. Never for long has it been that remote, unintrusive, seldom noticed institution envisioned in the 78th Federalist. But while the Court has been much in the minds of its countrymen, and not always favorably, while it has seemed to many Americans to be a deviant, an inconsistent institution in a political democracy, and also otherwise an irritant–just the same, while we have talked about it endlessly, we have never known what, if anything, to do about it. We have, indeed, seldom wished to do anything about it, coming to the brink only once or twice, notably in the Court-packing fight of 1937. Like Easterners transplanted to southern California, who find themselves missing the four seasons, rain, snow, sleet and all, our people would no doubt discover that they missed the Court if they ever did figure out something to do about it. It may be, as Felix Frankfurter once remarked, at a time when he was being highly critical of the Court of the 1920's and 30's, that if the Supreme Court "did not exist, we should have to create it."
Date of Authorship for this Version
Bickel, Alexander M., "The New Supreme Court: Prospects and Problems" (1970). Faculty Scholarship Series. Paper 3960.