in respect to such property, and to render of no effect those Police Powers which the Court for a hundred years has exalted above the Constitution itself.
BY CHARLES WARREN, ASSISTANT UNITED STATES ATTORNEY-GENERAL
(From the Columbia Law Review, April, 1913)
During the past two years, there has been much agitation directed against the Supreme Court of the United States, frequent reference to "judicial oligarchy," "usurpation" and the like, and demands for fundamental changes in the judicial system under the constitutions, not only of the States but of the United States. An evil is alleged to have grown up requiring radical measures for its correction -- an evil consisting in the supposed tendency of the National Supreme Court to invalidate by its decisions the liberal and progressive State legislation of the day.
There is grave danger that through constant iteration the truth of this charge will be assumed, and that the discussion will be confined to the form of remedy needed.
The Bar of this country has too long neglected its duty in allowing this charge to take root in the minds of laymen, swayed by unanswered articles in popular magazines and by uninstructed orators on the stump. Unless the Bar and the law reviews set the real facts constantly before the people, a complete misconception of our greatest Court may prevail to the detriment of its influence and of its powers. The falsity of the charge is easily to be proved.
The reformers who claim that the Court stands as an obstacle to "social justice" legislation, if asked to specify where they find the evil of which they complain and for which they propose radical remedies, always take refuge in the single case of Lochner vs. New York decided by the United States Supreme Court in 1905, in which the Court held unconstitutional the bakers' 10-hour day law of New York.1
Yet a single case does not necessarily prove the existence of an evil. If the evil is as serious as is claimed, it ought to be easy to point out numerous other cases.
The years 1887 to 1911 inclusive have constituted the period most productive of progressive and liberal -- even radical --social and economic legislation in the United States. The evil, if it exists, must have grown up during these years and should appear in the decisions____________________