Page:The Supreme Court in United States History vol 1.djvu/53

Rh unconstitutionality of a statute as "plain", "clear", "palpable" or "unmistakable", in any case in which one or more Judges should consider the statute to be valid; the adoption of such a practice would render impossible most of the "five to four" decisions, which have been so productive of lessened popular respect.^ It has been suggested that the voluntary elimina- tion or restriction of the now increasing practice of filing dissenting opinions would also tend to strengthen public confidence; on the other hand, such opinions are often of high value in the future development of the law and legislation.* More radical suggestions have been made for Constitutional Amendments estab- lishing an elective Court or a Court appointed for a term of years; but such propositions have never yet found any substantial support, since it is manifest that they could only result in making the Judiciary less independent and more politically partisan. Changes have also been suggested in the direction of re- stricting the appellate jurisdiction of the Court; but such legislation would result in leaving final decision of vastly important National questions in the State or inferior Federal Courts, and would effect a disastrous lack of uniformity in the construction of the Consti- tution, so that fundamental rights might vary in differ-

^ For an admirable discussion <rf this whole subject, see Consiiiutional Dednona hy a Bare Majoriiy cf ike Court, by Robert G. Cushman, Mich. Law Rev, (1921), XIX, cUing the views of many modern jurists pro and con; see also Five to Four Deeisiona of the Supreme Court of the United States, by Fred A. Maynard, Amer, Law Rev, (1920), LIV, DieeenUng Opinions, Oreen Bag (1902), XVII.

'See Dissenting Opinions of Mr. Justice Danid, by Judge Henry B. Brown, Amer. Law Rev. (1887), XXI ; Dissenting Opinions cf Mr. Justice Harlan, by Judge Henry B. Brown, ibid. (1912), XLVT ; Dissenting Opinions, by V. H. Roberta, ibid, (1905), XXXIX; Oreat Dissenting Opinions, by Hampton L. Carson, Albany Law Jovm, (1894), L. See also, for statement of the value of dissenting opinions. Story, J. (diss.), in Briscoe v. Bank (1887), 11 Pet. 257; White, J. (diss.), m Pollock v. Farmers Loan and Trust Co, (1895), 157 U. S. 429; White, J. (diss.), m Henry Y, A. B, Dick Co. (1912), 224 U. S. 1 ; Moody, J. (diss.), in Employers* Liability Cases (1908), 207 U. S. 463.