Usurpation of power when, allowed to go unchallenged breeds arrogance, irresponsibility and further usurpation. The history of the Supreme Court in our generation is far too apt a case in point.
When the Liberals first gained control of that branch, as a result of Franklin Roosevelt’s pressures and Charles Evans Hughes’ surrender, they moved reasonably cautiously. They utilized the Court primarily as a second echelon, supporting the President and his bureaucracy in their assault on the Constitution. In these years, also, the foundation for the present Court’s constitutional irresponsibility was thoroughly laid, as the cynical legal positivism of the dissenting minority of the era of Justice Holmes became the guiding doctrine of the Court in its majority. That doctrine, which has frequently been summed up in the adage, “The Constitution is what the Court says it is,” takes on a more sinister hue when it is carried from the genial cynicism of the law school lecture room into the precincts of actual power. In the hands of the epigonoi of the Anglo-American legal tradition who make up the present Supreme Court majority, it means quite simply: “Ignore both the written word of the Constitution and the tradition of precedent. Do whatever your prejudices or your ideology lead you to do.” Meyer
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