Duquesne Law Review


I was given the title "Judicial Conservatives and the Supreme Court." I think that is a rather appropriate title in that we must draw a distinction between judicial conservatives and the Supreme Court, judicial conservatives on the Supreme Court, and conservatives on the Supreme Court. DeToqueville said that every question in the United States sooner or later is framed as a legal question and comes before the Supreme Court. I think that speaks something of the Court's power and its influence in our society. Frankfurter has said that the Supreme Court's power is neither of the purse nor of the sword, but moral suasion. Now what does that mean? It means that the Supreme Court does not have an army or navy and cannot collect taxes. It means, therefore, that the Supreme Court must enjoy the confidence not only of its citizenry, but the confidence of its co-equal branches of government. The Court relies on the Congress to finance it; it relies on the executive to enforce its judgment. To the extent it reflects the tacit understanding that exists between the competing forces of a free society-that is, the tacit understanding between the executive, legislature, and judiciary-it can be effective. To the extent it fails to reflect this tacit understanding, to the extent it operates as a power independent, it runs into the danger of severely compromising its position in our society.

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