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It is true that these courts will gradually change in character. As the state dies out, they will tend to become simply organs for the expression of public opinion. They will assume the character of courts of arbitration. Their decisions will no longer be enforced by physical means and will have a purely moral significance.
…[I]n three notable instances the Court has suffered severely from self-inflicted wounds. The first of these was the Dred Scott case. … There the Supreme Court decided that Dred Scott, a negro, not being a citizen could not sue in the United States Courts and that Congress could not prohibit slavery in the territories. … [T]he grave injury that the Court sustained through its decision has been universally recognized. Its action was a public calamity. … [W]idespread and bitter attacks upon the judges who joined in the decision undermined confidence in the Court. … It was many years before the Court, even under new judges, was able to retrieve its reputation.…[The second instance was] the legal tender cases decided in 1870. … From the standpoint of the effect on public opinion there can be no doubt that the reopening of the case was a serious mistake and the overruling in such a short time, and by one vote, of the previous decision shook popular respect for the Court.… [The third instance happened] [t]wenty-five years later, when the Court had recovered its prestige, [and] its action in the income tax cases gave occasion for a bitter assault. … [After questions about the validity of the income tax] had been reserved owing to an equal division of the Court, a reargument was ordered and in the second decision the act was held to be unconstitutional by a majority of one. Justice Jackson was ill at the time of the first argument but took part in the final decision, voting in favor of the validity of the statute. It was evident that the result [holding the statute invalid] was brought about by a change in the vote of one of the judges who had participated in the first decision. … [T]he decision of such an important question by a majority of one after one judge had changed his vote aroused a criticism of the Court which has never been entirely stilled."
A second example of this abandonment of fundamental principles can be found in recent trends in the U.S. Supreme Court. Note what Lino A. Graglia, a professor of law at the University of Texas, has to say about this: 'Purporting merely to enforce the Constitution, the Supreme Court has for some thirty years usurped and exercised legislative powers that its predecessors could not have dreamed of, making itself the most powerful and important institution of government in regard to the nature and quality of life in our society....
'It has literally decided issues of life and death, removing from the states the power to prevent or significantly restrain the practice of abortion, and, after effectively prohibiting capital punishment for two decades, now imposing such costly and time-consuming restrictions on its use as almost to amount to prohibition.
'In the area of morality and religion, the Court has removed from both the federal and state government nearly all power to prohibit the distribution and sale or exhibition of pornographic materials.... It has prohibited the states from providing for prayer or Bible-reading in the public schools.
'The Court has created for criminal defendants rights that do not exist under any other system of law-for example, the possibility of almost endless appeals with all costs paid by the state-and which have made the prosecution so complex and difficult as to make the attempt frequently seem not worthwhile. It has severely restricted the power of the states and cities to limit marches and other public demonstrations and otherwise maintain order in the streets and other public places.
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