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The Special Competence of the Supreme Court (with George D. Braden), 50 Yale Law Journal 1319 (1941)


IT is a fact of which the laity may take public notice that the United States Supreme Court has experienced a revolution. Evidence of an unstable period abounds- forms loose their hold, jurists are released from conformity to rigid behavior patterns, a radical probing goes through matters-taken-for-granted to the roots of things. The group who deplored the Old Court, dominated by the Four Horsemen plus Hughes and/or Roberts, view the result with a satisfaction that calls for little support in analysis. The group to whom once the Supreme Court could do no wrong, are shocked by a bench of new men betraying the vested interests which it is their very office to conserve. In contemplation of gross result, the nature of the institution, the technology by which it carries on, and its changing discretion in the pattern of public control are likely to be overlooked.

If the work of less than four "October terms" amounted to writing a "yes" for a "no" in an application of established formulas of Constitutional law, the subject would invite no more than a catalogue of holdings. But change- with its long arm, its disturbing touch, its decree of events not yet manifest- has come to all the folkways of appellate process. Legal issues have been stated in novel ways; concepts dominant have exchanged places with concepts recessive; a new relationship has been given to the question of substance and the legal mould in which it is cast. Hardly an aspect of the Court's work has been untouched; and since its own suits do symbolic duty for a multitude of their kind, the revolution has extended to the whole institution of federal litigation and to all the affairs- personal, corporate, public- which it embraces within its sweep.

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