The Changing Role of the United States Supreme Court
| Date | 01 November 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02222.x |
| Author | Arthur Selwyn Miller |
| Published date | 01 November 1962 |
THE
MODERN
LAW
REVIEW
~~~ ~~ ~ ~~
Volume
25
November
1962
No.
6
THE CHANGING ROLE
OF
THE UNITED STATES SUPREME COURT
INTEODUCITON
''
WEBTHEE by force of circumstance or by deliberate design,"
Woodrow
Wilson
observed in
1908,
''
we have married legislation
with adjudication and look for statesmanship
in
our
courta."
The norm-setting function of the United States Supreme
Court
has
long been recognised. It has made t,hat
court
the centre
of
contro-
versy since the day in
1808
when Chief Jutice
John
Marshall
asserted,
in
the seminal
Murbury
V.
Madison,2
its power
to
declare
acts of Congress invalid
as
contrary
to the Constitution. Indeed
it
is
now
conceded that the justices cannot escape the creative-Le.,
policy-making-aspect of their work, even though
a
predictable
response from many of those
"
whose
ox
is gored
"
by
a
particular
decision will be the cry of
"
judicial legislation "-and even though
some thoughtful observers find
it
diiilcult to reconcile with demo-
cratic theory.a The result
is
a
body of decisional law which over
the decades has served to adapt and update the Constitution
of
1787
to what Holmes once
called
"
the felt necessities
"
of
successive generations.
Because (to quote Wilson again) the Constitution
"
is not
a
mere lawyers' document
"
but is
"
the vehicle of a nation's life,"
the abstractions which are its most important provisions were left
to gather content from experience and from future decision. The
Supreme Court thus sits
as
a
sort
of
continuing constitutional
con-
vention when it puts case-by-case content into those abstract
admonitions and prescriptions. In substantial measure
it
hrre
thereby been responsible for the enduring viability of
a
document
1
Wileon,
Constitutional Goocrnment
in
the United
States
(1908),
p.
168
(pagination from Columbia paperback edition
1961).
2
1
Cranch
137
(1803).
8
For
exam
le,
the late Jud
e
Learned Hand.
See
Hand,
Ths Bill
o
Rightr
(1968).
€8~
a
dircueeion
otthe
point
of
new.
nee
Shapiro,
"
Judicial
L
odwty,
Politial Reality, and Preferred Poeition
(letra)
47
Cornell
L.Q.
176.
4
Wileon, op.
eit.
at
p.
167.
VOL.
26
641
SB
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