◆ SpookStack

* on Wigs. r ve Me yy Fo i sae on ji + 4 t rie ad — ©@ Perspective Othe eat -ter Ce Si Criticism of the Court ee ee ee ee on by Hasanend Moley Ss DEE discussion Ove tle ATIOrICint { Bar _Association’s series af recom meadations ta Congress for Tegislation clantying, Jimiting, and defining) our protections agaist internal enemies and subversion, it was uitimated that it is unwise to criticize wot ouly the US. Supreme Court but any of its materpretations of the law, There are several good answers to this claim, some of which have been supplied by the Justices of that Court. The statement adopted by the House of Delegates of the ABA spe- cifically disclaimed any general criti- cism of the Court itself or any effort to limit the jurisdiction of that Court as defined by the Constitution. The recommendations of the House of Delegates aim to have Congress clar- ify its awn laws and to assume the pow- ers vested in it by the Constitution. For the Constitution in Article 11, Section 3, states that “In all the other cases before mentioned the Supreme Court shall have jurisdiction, with such exceptions and regulations as Congress shall make.” The only cases in which Congress may uot “regulate” are named in the same section and are not pertinent to the cases which were under consideration. THE BAR’S RESPONSIBILITY The bar in this instance is acting in its most significant role. A lawyer is semething more than a plain citizen. He is by tradition and law an officer of the cart and an agent of the gov- ernment. To refrain from guidance would*be to shirk the bar's responsi- bility, as a professional association, to the public and to government. Among the recommendations which the House of Delegates has made to Congress, three are outstanding: The states should be permitted to enact and enforce laws to protect the nation aud its citizensggainst sul-version, and Congzess should make clear that by enacting its own security haws it is not pre-empting the field, the Smith Act of 1940 should be amended and strengthened to include not only par- ticipation = in organized subversive groups, but the advocacy of over- ? throwing the government, “or to teach ; 1 cism would be to create a tyranny the necessity, desirability, or duty of seeking to bring about such over- throw”; and Congress should continue security. The ABA report pods cnat the: ne- cessity oP such Tegislation because of the serious Consequences af varigus its committees on imterial decisions of the Supreme Court. These, in the holy name of freedom, have setioush impeded effurts to in- vestigate and legislate against sub- wersive activity. In the debate in Chicago over the ABA recommendations some perti- nent evidence favoring the report was presented by Alfred J. Schweppe, 2 Seattle lawyer who has Sabored in- defatigably for years to provide public leadership through the bar. His evi- dence consisted of statements made by Justices of the Supreme Court it- self concerning the right and duty to subject the decisions of the courts to merited criticism. VIEWS OF JUSTICES Back in 1898, Mr. Justice Brewer stated in an address that many criti- cisms may be “devoid of good taste, but better all sorts of criticism than no criticism at all.” In 1941, Mr. Justice Black said in writing for the majority concerning a contempt case against The Los An- geles Times: “The assumption that respect for the judiciary can be won by shielding judges frum published criticism wrougly appraises the char- acter of American publi¢c opinion . . . an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and conterapt much more than it would enhance respect.” Dissenting in the same case, Mr. Justice Frankfurter nevertheless. said: “Therefore judges must be kept mind- ful of their limitations and) of their ultimate public responsibility by a vig- orous stream of criticism expressed with candor however blunt.” The late Mr. Justice Jackson wrote in “The Supreme Court in the Ameri- can System” that “criticism by the pro- fession” is one of the important criteria in appraising a decision’s “real weight in subsequent cases.” The Court is a responsible, human institution. To elevate it above criti- above the law and above the govern- ment of which it_is_a par