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FRE SUPREME COURT OF THE UNITED STATES is once again up to its black-robed neck in contro- versy. This situation is no new thing, and the attacks today are hardly less violent than in Franklin Roosevelt days >. when the “nine old men” were throwing out New Deal social legislation on Mon- day afterncons. But in those days the . attack came from the left; today it is from the right, ' . The present commotion is possibly in- evitable under the circumstances. The decisions may be good or bad, but many are in the most passionately emotional fields in American domestic life—segre- gation, subversion, and civil rights. - The decisions are so far-reaching in " gome cases that it may well be concluded 7 in after years that the outstanding direc~ tion and leadership in domestic policy in Washington at this period came not from ‘ the popular President nor the divided ; Congress but from the detached tribunal —trom that cool, lofty, marble hearing * room with its wine-red curtains. It has a deceptive calm about it but as Chief Justice Oliver Wendell Holmes once sig- hificantly commented--it is the quiet of ‘the center of the whirlwind, rights of the individual and the safety of the state. = —: ; For a troubled generation—first the > ‘world war, then the cold war, then the * the court to favor the state as against. ' Bism and the tenden - Gwil Rights ‘Active ' battle in that, undeclared Korean War—judicial em- phasis was put on the need for national security rather than upon those personal freedoms provided by the First Amend- ment and the rest of the Bill of Rights. The Supreme Court is the ancient stabi- lizing instrument between these two democratic goals. . ro It was inevitable, according to this argument, that after a protracted inter- val in which national exigencies caused the Individual the tide should change. At any rate, in the court's term just ended the most spectacular causes dealt often with conspiracy, subversion, and commu- of the Warren personal free- Ot ae ae . court was to reemph doms. | - _-. fa se yt This was not the only field in which decisions of the court cut across .inevi- aatels ines tide iat woes - : are Washington - (segregation bill. veges moot Sots none of them were of the importance of the original struck the South The school decision with stunning impact. It came May 17, - ’ 1954, Every phase of it was unusual. It ' . public education the doctrine ' (1951-55), voiced this criticism, was handed down by a new chief justice in his first term who had been expected to be 2 middle-of-the-road compromiser. The decision was unanimous without éven so much as a separate concurrence to water down its effect. It reversed what had been constitutional law since 1896, when the Fuller court fovented the separate-but-equal formula for school pegregation, Finally, it was based on & remarkably direct approach with the intricate pattern of constitutional -analo- gies and precedents pushed aside as “ins conclusive” and the ancient position te- versed, as the Chief Justice seemed to argue, because it was out-of-date. Or as he put it, because whatever the authors of the 14th Amendment “intended” in any event “we cannot turn the clock back to 1863." sot 7 “We ‘concluded that in the Held of of ‘sep- atate but equal’ has no piace.” era, ; ; Bitter Attacks 2... 2 * * Although recent attacks upon the have been based on a wide variety of decisions it {g doubtful whether they would have received the attention they - have but for the continuing controversy over this original decision and the con- tinuing efforts to apply it within the affected states. These attacks have been James F. Byrnes, former Associate Justice of the Supreme Court (1941-42) and Governor .of South Carolina Writing in the U.S. News & World Report, pub- lished by David Lawrence, Mr. Byrnes, on May 18, 1956, declared “the Supreme Court must be curbed.” He pointed out that the court had “reversed what had been the law of the land for 75 years” in its school desegregation ruling, and. went on to charge that “the court did hot interpret ‘the Constitution—the eaurt Piece wie 8 COUPE " amended jt." Mr. Byrnes then proceeded ons, Casea dealing with’ de- —~ segregation and the race issue kepise-“separate but equal facili area alive, though - cluded: = ee te ee EE ee rte bitter to his more questiogable contention thet: the court was guilty of “usurpation” of Eight associate justices agreed. End of : court - apg + gle + an on ar er on Pr ee el Pe es t tr now care ars . ot - “Power ‘intoxicates men. It fe never voluntarily surrendered. It must be iaken - from them, be curbed.”. 7 2 vf Congress Urged ©. Mr. Byrnes weged that this be done by action of Congress to limit the appellate The Supreme | Court Jurisdiction of the tribunal. © — In milder form Mr, Byrnes’ dissenting opinion has found some journalistic port from respected conservative jour- nalistg like columnist David Lawrence and ‘Arthur Krock of ‘the New York Times, On the whole, however, outside of the South, the unanimous court deci- sion has been found to be well within - the authority granted under the Consti- fution and elaborated by the precedents ot John Marshall and subsequent jurists. The United States Constitution leaves must | i i much play between the three-part gav- - e nmment—executive, legislative, and ju- dicial. This looseness is generally praised, It- allows the Constitution to grow and meet the challenge of new conditions while its basic main inflexible. a “ There is a popular fallacy that the Supreme Court has an infallible sli - rule of constitutional and judicial prec dents against which it applies any given! case producing an inevitable result. This is a naive concept in view of the com- plexity of modern conditions, ,; .-. +... The Constitution guarantees to indi- viduals all sorts of rights, but often these - overlap the borderline of an economi¢e or social right in ancther direction. Gov- ernment, itself, is a compromise between the freedom of the individual and the need of the state. It {s the high duty of the great court to interpret these ‘con- flicts in the light of the time, ae Almost all of the personal “freedoms* must be redefined from time to time in debatable and ‘borderline cases, from freedom of speech to freedom of reli- , gion, Most commentators regard the vi w of Prof. Fred Rodell of Yale, that Supreme Court ts primarily a politica rather than judicial instrurient'as ex- treme and yet the fact that it plays a DUrnASses rhe eee ae, role in statesmanship in its selection of - urses cannot be questioned. © + .:-- - This, then, is the background. for the present controversy over the- court state power, ; 7. -- |” . Without the fire lit by the o: l unani- . Ordinarily, the court has con= mous desegregation decision in 1954 the trolled by legal precedents. In thh segre- heat over 1957 decisions in subvertive gation opinion, it could cite Jegal and Communist cases would -have _ precedent Jor ita decisiom | se all. -lees intense. All these: emotional et _ine precedents sustiin the doctrine of ‘together have precipitated the court ito e%.”. He con= the biggest controversy since New ¢