TOWARD A JUDICIAL ROLE FOR THE TWENTY-FIRST CENTURY

• NCJ Number: 48473
• Journal: Washington Law Review Volume: 52 Dated: (OCTOBER 1977) Pages: 791-805
• Author(s): C L BLACK
• Date Published: 1977
• Length: 15 pages
• Corporate Author: University of Washington
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: WASHINGTON LAW REVIEW LECTURE SERIES

Annotation

THE VARIOUS INFLUENCES WHICH SHAPE THE ROLE OF THE JUDICIARY ARE EXAMINED, ALONG WITH FACTORS WHICH MUST BE CONSIDERED IN EFFECTING A CHANGE IN THAT ROLE.

Abstract

IN 1954, FEW OBSERVERS WOULD HAVE PREDICTED THE ROLE THE COURTS WOULD PLAY TODAY OR THE CHANGES WHICH THAT ROLE WOULD UNDERGO. AS LATE AS 1960, JUDICIAL ACTIVISM AND HUMAN RIGHTS ADVOCACY WOULD HAVE BEEN UNSOUND STANCES TO TAKE. THE EMPHASIS WAS RATHER ON THE DANGERS OF SUCH A JUDICIAL ROLE. EXTRAPOLATION FROM HISTORY IS PERILOUS, HOWEVER, AND WHILE IT IS DIFFICULT TO PROJECT FROM EVEN THE STRONGEST TRENDS, ONE CAN SUGGEST WAYS IN WHICH THE FUTURE JUDICIAL ROLE MAY BE MOLDED. WHILE IT MAY BE THOUGHT THAT THE JUDICIARY SHAPES ITS OWN ROLES, CONGRESS HAS CONTROL OVER THE JURISDICTION, THE MANNING, AND THE FURNISHING WITH MEANS OF THE LOWER FEDERAL COURTS AND THE SUPREME COURT. THUS, THE CONGRESS HAS MORE THAN AMPLE MEANS TO CHANNEL THE JUDICIARY IN A FRUITFUL DIRECTION. FOR INSTANCE, NEARLY ALL JUDICIAL ACTIVISM CAN BE TRACED BACK TO 1875, WHEN THE FEDERAL COURTS WERE GIVEN JURISDICTION OVER CERTAIN DEPRIVATIONS OF CONSTITUTIONAL RIGHTS WITHOUT REGARD TO JURISDICTIONAL AMOUNT. MANY LESSER CONGRESSIONAL ACTIONS HAVE ALSO GONE INTO SHAPING THE ROLE OF THE COURTS, AS IS ILLUSTRATED BY PROHIBITIONS ON LABOR INJUNCTIONS AND FEDERAL JURISDICTION OVER CASES INVOLVING STATE LAW. CONSEQUENTLY, THOSE WHO WOULD PROJECT UPON THE COURTS A BETTER ROLE MUST CONSIDER FIRST WHAT CONGRESS CAN BE PERSUADED TO DO. FURTHER CONSIDERATIONS OF THE JUDICIAL ROLE WILL REQUIRE AN ACKNOWLEDGEMENT OF THE TIME AND RESOURCE LIMITATIONS ON THE JUDICIAL ROLE. IT IS SUGGESTED THAT JURISDICTIONAL AMOUNT AS A BASIS FOR DETERMINING PRIORITY SHOULD NOT BE A STANDARD. TWO IMPORTANT JOBS OF THE FEDERAL COURTS SHOULD HAVE PRIORITY: THE FURNISHING OF COURT AUTHORITY TO THE NATIONAL GOVERNMENT IN THOSE CASES WHERE GUARANTEED PERSONAL RIGHTS OR NATIONAL INTERESTS HAVE BEEN ANNEXED, AND IN LITIGATON BETWEEN PRIVATE PARTIES WHERE A QUESTION PERTINENT TO NATIONAL POLICY IS RAISED. BEYOND THESE TWO ROLES, THERE IS NO GENERAL ANSWER. ADDITIONAL FEDERAL JURISDICTION WOULD DEPEND ON A FURTHER RANKING OF PRIORITIES AND THE ABILITY OF STATE COURTS TO TAKE OVER. THE DETAILED DECREES OFTEN REQUIRED IN ADVOCACY AND PUBLIC INTEREST CASES MAY STILL PRESENT A PROBLEM WITHIN TIME LIMITATIONS, BUT ONE WHICH MAY BE OVERCOME BY WORKING IN CONJUNCTION WITH THE ADMINISTRATION AND FEDERAL AGENCIES. NOTES ARE INCLUDED. (JAP)