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On the last day of the October Term, 1960, the Supreme Court's two senior Justices took a majority of their brethren to task for reading the union shop provision of the Railway Labor Act in a sharply restrictive and, consequently, plainly constitutional manner. Said Mr. Justice Black:
I think the Court is once more "carrying the doctrine of avoiding constitutional questions to a wholly unjustifiable extreme." In fact, I think the Court is actually rewriting [the statute] to make it mean exactly what Congress refused to make it mean. The very legislative history relied on by the Court appears to me to prove that its interpretation . . . is without justification. . . . I think Congress has a right to a determination of the constitutionality of the statute it passed, rather than to have the Court rewrite the statute in the name of avoiding decision of constitutional questions.
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