The Twilight of the Supreme Court

[Yale University Press, $2.50]

To the nine Justices at Washington, in the midst of this most publicized of all terms, the title of Mr. Corwin’s little book must sound with a peculiar irony. Around that title, indeed, centre the most interesting questions about the book. What does it mean? What excuse for it is there, other than the advantages of good window dressing for a subject that may seem staid?

The first of these questions Mr. Corwin himself seems to answer in the heading of his last chapter, ‘The Breakdown of Constitutional Limitations — The Spending Power.’ Herein he rehearses the familiar controversy about the general welfare clause, and details the practical interpretation arrived at by Congress and the President in the steady extension of the scope of federal expenditures. The Supreme Court enters importantly into the story only at a late stage; in 1923 it declined to permit either a state or a taxpayer to enjoin payment out of general funds of the appropriations authorized by the Sheppard-Towner Maternity Act. In good part upon the basis of this decision, Mr. Corwin proceeds to erect the following very large conclusion: —

‘With the national government to-day in possession of the power to expend the social product for any purposes that may seem good to it; the power to make itself the universal and exclusive creditor of private business, with all that this would imply of control; the power to go into any business whatsoever, what becomes of judicial review conceived as a system for throwing about the property right a special protection “against the mere power of numbers" and for perpetuating a certain type of industrial organization?‘

This is the twilight of responsible scholarship more nearly than that of the Supreme Court. In a glowing introduction Dean Clark of the Yale Law School disclaims for Mr. Corwin the rôle of a prophet. But here is prophecy with a vengeance. By a single blithe sentence Mr. Corwin has taken a wondrous load of anxiety from the minds of government lawyers at Washington. Not content with settling at a stroke some ot the most doubtful questions connected with the constitutionality, for example, of the T.V.A. and the federal housing programme, he gives a clean bill of health to legislation yet undreamed of.

Of more general interest are the implications of Mr. Corwin’s thesis in the event that his prophecy is fulfilled or (which is more probable) partly fulfilled. Is this really the Achilles’ heel of the whole system? The idea that some at least of the powers of Congress were without limitation was familiar to Marshall; the aggressions of the due process clause have never wholly extinguished it. Mr. Corwin does valuable service in breaking down the naïve notion of a judicially imposed strait-jacket. Yet he takes us little further than does a realization that Congress (with the aid of the President) can also pack the Supreme Court and (singlehandedly) alter or take away much of its jurisdiction. This is in essence that same subtle fallacy, so characteristic of American constitutionalism, which in other connections Mr. Corwin himself effectively exposes, the fallacy of reasoning about basic problems of government in terms of abstract power. It is as if one were to dispose of the constitutional position of the British Parliament by saying that its authority is arbitrary and unlimited.

The title of the book stands on firmer ground if its application be not directed to peculiar, and by no means novel, theories concerning the spending power. The essential unity of the book derives from a wider thesis, the idea that the Supreme Court in many aspects of its jurisdiction stands at a crossroads, a crossroads at which it has no real freedom of choice. Circumstances are cogently marshaled to suggest the pressure upon the Court to withdraw from many an untenable position: to give over the effort to use the due process clauses ‘to sterilize legislative power,’ to recognize an authority in Congress to legislate coextensively with the need for Congressional legislation, to abandon its own more brazen efforts to set itself up as a super-legislature. Should such prophecies as these be fulfilled, it would indeed be a twilight of one kind of Supreme Court. One regrets only that the great weight of Mr. C̃orwin’s name should be used to strengthen the identification in the public mind of the function of the Supreme Court with this particular aspect of its performance.

A book so uneven as this can only be unevenly reviewed. Its limitations seem more important than its merits, yet it should be clear that it has great merits. It is perhaps t he most useful book in brief compass that has been written about the Court, either its past or its present. It is history in its best sense, a contribution to contemporary thought with emphasis on the dimension of time. There is here much material, skillfully brought together, to enrich judgment upon a wide range of everyday questions. Yet it is fair to say that the book seems as good as it is only because there are not others which are better. At best Mr. Corwin stands only at the threshold of problems which require urgently to be thought out, and to be thought out in the near future.

HENRY M. HART, JR.