Justice Jackson on the “Cult of Libertarian Judicial Activists”

October 29th, 2014

In 1969, four lectures were published in honor of Mr. Justice Jackson by Charles Desmond, Paul Freund, Potter Stewart, and Lord Shawcross. Towards the end of Stewart’s lecture, he quotes Justice Jackson’s remarks from the “last of the Godkin Lectures.” Jackson died in 1954 before he was able to deliver these lectures, but they were published in his book, “The Supreme Court in the American System of Government.” Justice Jackson wrote of a “cult of libertarian judicial activists,” who:

believe that the Court can find in a 4,000-word eighteenth-century document or its nineteenth-century Amendments, or can plausibly supply, some clear bulwark against all dangers and evils that today best us internally. This assumes that the Court will be the dominant factor in shaping the constitutional practice of the future and can and will maintain, not only equality with the elective branches, but a large measure of supremacy and control over them. I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I am one, at the time of the Roosevelt proposal to reorganize the judiciary. But it seems to be a doctrine wholly incompatible with faith in democracy, and in so far as it encourages a belief that the judges may be left to correct the result of public indifference to issues of liberty in choosing Presidents, Senators, and Representatives, it is a vicious teaching.

Stewart adds in closing:

That is forceful language. But the key word, I think, is “faith.” Justice Jackson knew that the Framers had put their ultimate faith in the people, and there, for better or worse, he put his faiht too. He firmly believed that only so long as we remain a free and responsible people can there endure a society to be truly served by the profession he loved so much and the Court he served so well.