It is a commonplace that the great divisive contests in American history have been played out across the boards, as it were, of the Supreme Court. There, as in the sublimation of a morality play, have passed in review before a tribunal of authoritative critics the dramatic conflicts over slavery; the contest between land and water transportation; the struggle of industrial competition against the forces of concentration, the clashing interest of workers, consumers, and investors, and the claims of dissenting groups and individuals. A federal system presupposes diversity and must cope with corresponding tensions. Does it assume also a judiciary vested with the role of arbiter?
The Anglo-American tradition has accustomed us to identifying with judges the task of constitutional arbi