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ro * U. S.News & World Report , @ @ - - . “Outburst of criticism’ of Court “cannot be ignored” judicial process stemming from nation-wide attacks currently being leveled at our courts and, particulaly, the Supreme Court of the United States. This, of course, has happened before. [t poes hack, at least, to 1803 and the case of Marbury v. Madison, in which the Court declared its power te pass on the constitutionality of acts of Congress. Presidential wrath was incurred, congres- sional threats to impeach the Justices ensued, and it was vigorously asserted that each branch of the Government should determine for itself the constitutionality of its acts, without overlordship by the courts. Then came McCulloch v. Maryland, announcing the doc- trine of federal supremacy and the power of the United States Supreme Court to hold State action violative of the Federal Constitution. It was urged then that the Court be deprived of its power to review the acts of States. The Dred Scott decision of a century ago is still remem- bered as a contributing factor to the furor which culminated in the Civil War. In the 1930s a hue and cry was raised against “the nine old men,” traveling in the horse-and- buggy days, thwarting the will of a determined Chief Execu- tive with respect to social legislation. Present-day attacks, perhaps more virulent and widespread than ever before, emanate from a number of sources: from the halls of Congress, where it is felt that Court decisions have impinged on congressional powers; from States which see in the decisions a sapping of their powers and a gathering of them into the National Government; from sectional groups which view certain decisions as destructive of their social! —— strictures; ard from persuns everywhere who are fearful ttt ~~ ~ decisions are enlarging the national power to constrict the rights of law-abiding people and, yet, are weakening our defenses against the enemies of our free institutions. Whether justified or not, these feelings, beliefs, views and fears have produced a combined outburst of criticism which cannot be ignored. , With the criticism have come proposals to curb the Court. These go to the very roots of our system. One would make the Justices subject to periodic reconfirmation by the Senate and another would empower the Senate to withdraw con- firmation whenever the judicial work of a Justice does not comport with the Senate's views as to what is “good behavior,” fixed by the Constitution as a condition to continued tenure. Lost would be judicial independence and destroyed our system of checks and balances between the three branches of Government, leaving a Court dependent on legislative fayor and approval for performance of its role as protector of the rights of the people against governmental encroachment. ___ Limiting the “Power of Review” By another measure, Congress would strip the Supreme Court of the power of review in several areas of the law, If the powers of the Court to determine constitutional ques- tions were, thus, to be limited, the constitutional rights of in- dividuals and minorities could be made to depend on the -will of the majority as reflected in Congress. That would ‘mark the beginning of parliamentary, and the end of consti- e-tutional, government in the United States. In view of the unlikelihood of success for such proposals, ~dhowever, it must be concluded that, for our liberties, the most ‘#erious consequence of the present controversy inheres in the unbridled attacks on the intelligence, integrity and mo- ~-tives of the Justices and on the Court as an institution of Gov- ~emment, Subversives and those bent on the destruction of ‘ur system have as a prime objective the undermining of pub- wl. 6. MEWS & worto REPORT, Dec. 12, 1958 fic confiderice in the courts, knowing full well that, without the support of public opinion, courts can avail nothing in de- fense of the constitutional rigats af persons. As earlier ab- served, when that day comes we will have reached a parting of the ways with our cherished freedoms. In warning of the dangers of intemperate attacks on the Court as an mstitution of government and the prardian of our liberties, 1 do not suggest that the Court's decisions may nat be criticized or diflerences therewith expressed. Dissenting members of the Court do se with apparent relish ard reqgubar- ity. Citizens under a government by the people may and ought to do no less, if that system is ta be maintained. That was aomajor object of the First Amendment guarantee of freedom of speech, designed to insure a Government sensitive and responsive to the expressed public will and wish. On this subject, Mr. Chief Justice Stone said: “Thave no patience with the complaint that criticism of judicial action invelves any lack of respect for the courts. When the courts deal, as ours do, with great public questions, the only protection against unwise de- cisions, and even judicial usurpation, is careful scrutiny of their actions and fearless comment upon it.” State Judges’ View of Court This brings us to consideration of that portion of the sub- ject matter which, I apprehend, prompted the invitation to me to speak on this occasion. As is well known, the Confer. ence of Chicf Justices, assembled_in Pasadena last_Angyst, - adopted aréport prepared by its Conimittee on Federal-State Relationships as Affected by Judicial Decisions. At the outset, permit me to make these observations: 1. Neither that committee, its report or the conference pre- sumed then, nor do I now, to criticize the Supreme Court's decisions in the troublesome segregation cases. 2. It was not questioned that, with government under a Constitution made by its own terms the supreme law of the land, someone must interpret that Constitution and declare its meaning. It was acknowledged, and I reiterate with conviction, that no body is better suited to the task than the Supreme Court and no process is better adapted than the judicial proc- ess to the function of determining constitutional meaning and making constitutional limitations and guarantees effective, 3. The conference's expressed alarm, and mine, at the noticeable trend toward increased national powers accom- panied by a diminishing of the powers of States and local governments relates not to mere sectional or selfish intercst ge but springs from the same concem as that of our Founding Fathers that liberty’s cause may be lost in too high a concen. tration of powers in the National Government, and from the conviction that safety for the rights of man inheres in a dif- fusion of those powers and maintenance of the highest pos- sible degree of local self-government compatible with na- tional security and well-being. So long as we adhere to the determination of the Fathers that the state, the Government, exists for man and not_man for the state, our lodestar in the consideration of ev- ery proposed extension or withholding of governmental pow- er must always be, “How will the cause of freedom best be served, how the rights of man advanced?” That there has been a trend toward centralization in Wash- ington can scarcely be gainsaid. Challenged at mileposts along the way, it has advanced under the green light of judi- cial decisions. Time will not permit mention of them all nor a thorough analysis of any. The first relates to the rule long adhered to by the Court and redeclared as recently as 1936 e 91