The Court and Prestige

The U.S. press had a field day lambasting a favorite whipping boy of the 1930s--the Supreme Court. To editorialists and cartoonists it seemed that strange things were happening in the marble palace where once sat the solemn Nine Old Men. Solemnly, the staid New York Times deplored "the unstable Court . . . with its recent astonishing record of dissents . . . confusion and uncertainty." Sardonic, pink-faced Cartoonist Daniel Robert Fitzpatrick of the St. Louis Post-Dispatch took a slightly merrier view. He pictured the Justices as a bunch of middle-aged gamins, pinking one another's skulls with legal slingshots.

The critics had some basis in fact: the Justices had been airing their views with more than a little acidity. First, Justices Black and Murphy stingingly remarked that Justice Frankfurter has been propounding "a wholly gratuitous assertion as to constitutional law." Then Justice Roberts returned: "The tendency to disregard precedents has become so strong ... as to leave courts below without any confidence that what was said yesterday will hold good tomorrow." Last week, Justice Frankfurter cracked back at Justices Black and Murphy, saying that their theory of the law is "wholly novel."

But was the Court really unstable? Was the number of dissents (1942-43 term: 176) astonishing? A highly placed intimate of the Court took a temperate view. He found the dissents normal to the point of nothingness and argued that many of the so-called reversals of the present Court simply upset 16-year-old opinions which in themselves had reversed precedents established for 75 years. His explanation of what the public saw as high jinks: the Court has seven comparatively young men who, although they were all appointed by Franklin Roosevelt, simply do not think alike. The Court no longer splits off into blocs. It now has individual cleavages. The words of the late, great Justice Oliver Wendell Holmes were still true: that the quiet of the Supreme Court is "the quiet of a storm center."

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