The subway fare in New York City was recently raised to thirty cents. Incensed citizens immediately declared they would go to court and have the increase declared unconstitutional. "Unconstitutional" and "constitutional rights" have become the watchwords of political protestors and reformers. Moreover, their political forum is often a court of law. Who taught the nation this rhetoric, this mode of action, and this attitude toward law, law reform, and politics? The Supreme Court of the United States. Has the Court deliberately taught this doctrine? No, nor is it apparently even conscious of what it has unwittingly done. It is important to remember that, the Court is, was intended to be, and ought to be an important, even vital, teacher in our democracy. However, this traditional "teaching" is a conscious attribute of its great power of judicial review - the power to review and override in the name of the Constitution some decisions of those branches of government representing the immediate will of the people. But in a subter more pervasive and ultimately more potent manner, the Court, like the political branches Justice Brandeis was speaking of, teaches by its example. This example is the Courts' activity seen as a whole, that is as the publicly-visible pattern of its more salient holdings, rather than as fragmented into individual holdings or their rationale. By this example the Court teaches attitude toward the idea of law in a constitutional democracy. By this example it teaches the lower courts their role as decision makers in a democracy. It teaches political leaders their role in constitutional policy making, i.e. in policy touching the heart of what we are as a people. And it teaches all of us whom we must persuade if desired policy is to be realized. Part I of this article examines in detail one particular result of the Supreme Court's teaching - a recent constitutional decision by the West Virginia Supreme Court of Appeals. In Part II of this article, a more general examination of the Court's recent activity, is undertaken in order to develop the thesis suggested by the critique of the West Virginia case that the tone set by the example of the Court of the recent past is inimical to both the vital function of the Court as a guardian-teacher of fundamental American ideals and to the political health of a democracy.
James A. McLaughlin,
What Has the Supreme Court Taught: A Criticism of the Unites States Supreme Court by Way of a Critique of Lance v. the Board of Education of Roane County,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol72/iss1/3