C. Herman Pritchett

Divisions of Opinion Among Justices of the U. S. Supreme Court, 1939–1941.

“We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.

Equal Protection and the Urban Majority.

This year marks the tenth anniversary of the Supreme Courts decision in Brown v. Board of Education . On May 17, 1954, nine judges, sworn to defend a Constitution which guarantees equal protection of the laws, speaking for a country which declared its independence on the proposition that all men are created equal and which is fighting for moral leadership in a world predominantly populated by people whose skin color is other than white—these nine men unanimously concluded that segregated educational facilities are “inherently unequal.” Most of the members of this audience can probably still recall their feelings when they heard what the Supreme Court had done. Even those who were in full sympathy with the holding must nevertheless have been awed by the responsibility the Supreme Court had undertaken and shaken by some doubts whether the judicial institution could engage in a controversy so charged with emotion and bitterness without running the risk of political defeat and possible permanent impairment of judicial power.

United States Government and History: HOLCOMBE, A. N., et al. The Gaspar G. Bacon Lectures on the Constitution of the United States, 1940-1950. Boston University. Pp. x, 541. Boston: Boston University Press, 1953. No price

ter for the Nuremberg tribunal. The author calls the voices which began to appear in print in the 1940’s &dquo;young voices.&dquo; He mentions Krylov and Durdanevsky in particular along with Kozhevnikov. The latter was young at the time, but the other two were well on in years, appearing as new voices only because they had previously been in eclipse because of what seems to have been considered to be a lack of com-

GERALD, J. EDWARD. The Press and the Constitution, 1931-1947. Pp. viii, 173. Minneapolis: University of Minnesota Press, 1948.

own image. They converted a revolutionary, people’s war into a &dquo;safe&dquo; war to preserve the status quo and to attain limited military objectives; they scotched all manifestations of upsurgent democracy; failed to utilize fully the potentialities of small business, labor, and science; managed reconversion to ensure the continued dominance of big business, and deceived the people with slick propaganda. The preponderance of our industrial power ensured a favorable military decision without full use of our democratic potential. Government played a secondary role. It purchased the co-operation of big busi-