Stevens sees three crises in American judicial statesmanship.
The first was the crisis of the founding. The well being of the
country was subjected to grave danger, culminating in the crisis of
the Civil War, and a refoundation was required. During the mid
twentieth century The United States faced the possibility of
destruction, World War II, and the finding of malfeasance of the
nation in the office of the president. The constant excitement of
contest with antagonists makes it difficult to say whether the
current crisis of the Supreme Court is merely a continuation or a
whole new problem.
The political leaders who resolved the first crisis and founded
the Republic bequeathed as a part of that foundation the United
States Supreme Court. During the subsequent history of the country,
and with respect to its crises, the Court played a large part.
Whether or not it does so well in the current period depends upon
the quality of its judicial statesmanship. The judge is a person
who acts. But it is considered action and considered action is
based on prior understanding. The character of the Court's
understanding, or direction, reveales itself in the course of its
division over the application of the "due process" clause to state
criminal proceedings.
Frankfurter's view is problematic. If Western civilization is
to be preserved, it must be because it is worth preserving. If it
is worth preserving it must be because it is good. If so, can it be
preserved by reliance upon and reference to itself, or must
reliance not be placed upon that by virtue of which the thing to be
preserved is worthy of preservation? This problem is not new to
Western civilization. Much has been written about Frankfurter, and
common descriptions of the terms "restraint" and "pragmatism" to
characterize his doctrines. Previous treatments of these doctrines
now available have not seemed adequate. The intention of "Reason
and History in Judicial Judgment" is to treat them as ethical
problems rather than as self-explaining conclusions.
General
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