TEE STRUGGLE FOE EQUALITY 235 



THE STKUGGLE FOR EQUALITY IN THE UNITED STATES. 



IV 



By Pkofessob CHARLES P. EMERICK 



SMITH COLLEGE 



The Courts and Public Opinion 



I 



MANY are disposed to take exception to popular criticism of the 

 courts. This point of view merits consideration because it is 

 entertained by some who are genuinely progressive in spirit as well as 

 by reactionaries. It is the position of those who think the tyranny of 

 the majority is our greatest menace and who look upon the courts as the 

 bulwark not only of property, but of personal liberty. It reflects the 

 traditional respect in which the courts are held. 



It is quite generally conceded that there are certain limitations to 

 criticizing the courts which need not be observed in the discussion of 

 other matters. During the trial of a case, remarks which obstruct the 

 administration of justice are clearly out of order. Neither can the 

 expression of views well be justified which counsel resistance to the 

 decrees of the courts after they have once been rendered. So long as the 

 decision of a court stands as the law of the land, it should be obeyed, 

 unless an exception be made where matters of private conscience are 

 involved. But this in no wise precludes bringing a similar case before 

 the court with a view to having the point at issue reargued and the 

 decision reversed, neither does it preclude popular discussion of the 

 grounds upon which an objectionable decision rests. Starte decisis is a 

 rule which admits of exceptions. The second legal-tender case is a 

 conspicuous example. The view expressed by the Supreme Court in the 

 Dartmouth College case has been "substantially modified, if not abro- 

 gated altogether." 1 Those who object to any and every criticism of 

 court decisions forget that the law is not a hard and fast thing, but is all 

 the time in the making, changing with the prevailing sense of right, 

 and that discussion and criticism by the laity as well as by members of 

 the bench and bar are helpful to this end. When there is great diversity 

 of opinion among members of the bench upon a question, the general 

 public can not well be denied taking part in the discussion, especially 

 when some question of governmental policy is involved in regard to 



1 Christopher G. Tiedeman, ' ' The Unwritten Constitution of the U. S., ' ' 

 p. 66. 



