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_ -" Perspective-. -. . U8. Peteat Rerintered nat Criticism of the Court N THE discussion over the American Bar Association's series of recom- mendations tc Congress for legislation clarifying, limiting, and defining our protections against internal enemies and subversion, it was intimated that it ig ginwise to criticize not only the U.S. Supreme Court but any of its interpretations 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 own laws and to assume the pow- ers vested in it by the Constitution. For the Constitution in Article I, 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 not “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 something more than a plain citizen. He is by tradition and jaw an officer of the court and an agent of the gov- emment. 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 and its citizens against suLversion, and Congzess should make clear that by enacting its own security laws 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 the necessity, desirability, or duty of 62 apriy Woe by Raymond Moley its committees on internal security. The ABA report points out the ne- cessity of such legislation because of the serious consequences of various decisions of the Supreme Court. These, in the holy name of freedom, have seriously impeded efforts to in- vestigate and legislate against sub- versive activity. In the debate in Chicago over the ABA recommendations some perti- nent evidence favoring the report was presented by Alfred J. Schweppe, a Seattle lawyer who has labored 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 manv cyiti- 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 from published criticism wrongly appraises the char- acter of American public opinion... an enforced silence, however limited, . solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhanre recnact” enhance respect. Dissenting in the same case, Mr. Justice Frankfurter nevertheless said: “Therefore judges must be kept mind- ful of their limitatieas 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 respensihle, human institution. To elevate it above criti- cism would be to create a tyranny above the law and auove the govern- ment of which it is a part. Newsweek, March 16, 1959 4 Cy :