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THE GREEN BAG

of separation of powers which permeated the political philosophy of the times was another influence which tended to carry the Supreme Court in the same direction. The Supreme Court, guided by a Constitution which rather broadly determined its field and defined its powers, became henceforth the final inter preter of its own authority over the other departments. To have abused this power," especially at the beginning, would have meant the speedy downfall of the high authority of the Court. Hence, the Court proceeded with caution, and declared that it would not deal with political questions. It also re jected the doctrine that it could declare void laws contrary to natural justice. But the separation of powers meant that in a certain sense the Court must exercise legislative POLITICAL THEORIES OF THE SUPREME duties, and that laws of Congress in one sense COURT. are not final until this highest Court has In the February American Political Science granted its seal of approval. The author Review (Vol. ii), page 221, Charles G. Haines then calls attention to indications in the publishes a valuable thesis entitled " Political decisions of the Court of the influence of the Theories of the Supreme Court from 1789 to social contract theory, and to the theories 1835." It is interesting for its frank recog which it evolved of state and national nition of the remarkable characteristic of our sovereignty, which were new in political highest judicial tribunal. He says that " In thinking. He also describes how the Court accordance with the principles of ancient under the lead of Chief Justice Marshall custom, a court was a tribunal established developed the doctrines of limitations on the by law with the power to hear controversies powers of the States, and of implied powers between persons and to administer relief under the Federal Constitution, which were or punishment." Such was the traditional the chief instrument in creating our strong position of the country when the Federal national government. Constitution went into operation, and the The article above summarized covers only early decisions of the Supreme Court recog the formative period which ends with the nized the limitation of its field. In Colonial death of Marshall, but it would be interesting days, however, the theory had been evolved to trace, from the same frank governmental that acts of the legislature might be regarded point of view, the further history of the Court as void, and since the .Revolution was born through the remainder of the conflict between of resistance to the arbitrary acts of an State rights and centralized government. unlimited government, the doctrine was soon Still more interesting will it be for the future advanced that courts of justice could declare historian to study the development now in void acts of Parliament. It was a natural progress, which began 'with the rise of development, therefore, that the same doc economic questions incident to the develop trine should be applied to acts of Congress in ment of the wealth of the country during the violation of the Constitution; and it was in last generation. The unforeseen effects of consequence of this development that the the adoption of the I4th Amendment have court has had to deal with questions purely been bringing all these questions for final political and governmental, and to discuss judgment to the Supreme Court of the questions of political, economic and social United States and we are at last awakening to theory, which from a strictly judicial stand the political significance of its decisions and to point should not be expounded. The doctrine their effect upon popular confidence. comes from consideration of the general problems of litigation. It seems likely, however, that the judges who serve in this court would find their appointments renewed at the end of their terms, and the provision for rotation would be valuable only as a means of gracefully retiring an unsatisfactory mem ber. Objection may be made that this is a departure from the principle of independence due to permanence of tenure which prevails throughout the Federal judiciary. Since the designations, however, are to be made by the Supreme Court, and not by any elective body, it seems unlikely that this possibility should have any effect .upon the judges of the pro posed court except to stimulate them to devoted service.