Judicial Legislation by Editor

Pacific Press Publishing Association · Mountain View, California · Jun 13, 1911

FromSigns of the Times, Vol. 38, No. 23.

Judicial Legislation

By Editor

WE quote above from an editorial in the New York World as to what the recall of judges means; namely, a revolution. But the late decisions of the Supreme Court in the dissolution of the Standard Oil Company and the Tobacco Trust will probably aid materially in pushing the recall of judges. The Tobacco Trust is held to be a combination in restraint of trade, a monopoly in violation of law, and is therefore dissolved, thereby affecting sixty-five American and two English corporations. The trust was held to be guilty of intimidation, "guilty of conscious wrong-doing;" yet the court remands the case to the circuit court to allow it the opportunity to disintegrate and recombine under conditions "not repugnant to law." The court is unanimous in the dissolution of the Tobacco Trust, as in the dissolution of the Standard Oil Company; but from certain things in both decisions Justice Harlan vigorously dissents. He believes that in these two cases the Supreme Court by judicial legislation in effect amends an act of Congress relating to a subject over which that department of the Government has exclusive cognizance.

Referring to past decisions of the court in which the purpose of Congress was ascertained, Justice Harlan says:

They did not grope about in darkness, but in discharging the solemn duty put on them by the Constitution, they stood out, with minds unmystified, in the full glare of the light of reason, and felt and said time and again that the court could not and ought not under the Constitution to usurp the functions of Congress by indulging in judicial legislation.

Again he says:

The evidence in the record is, I think, abundant to enable the court to render a decree containing all necessary details that will effectually suppress the evils of the combination in question. But the court sends the case back with directions to further hear the parties so as to ascertain whether a new condition can not be created in harmony with the law.

I have found nothing in the record which makes me at all anxious to perpetuate any new combination among those companies that the court concedes had at all times exhibited a conscious wrong-doing.

A senator is quoted as saying:

A justice of the Supreme Court from the bench denounces judicial usurpation by his associates; two senators on the floor of the chamber warn their fellow members that the body must purge itself and restore representative government; another, addressing a class of law graduates, forewarns the nation of Socialism and possible anarchy. Income tax amendments, popular election amendments, are being pressed; election machinery is being taken into the hands of the people; the great captains of industry are falling out and telling on each other. The truth is that the people of the United States are in the throes of a tremendous revolution and do not realize it.