The Sovereign Prerogative: The Supreme Court and the Quest for Law
Law, Liberty, and Morality
Dean Rostow’s The Sovereign Prerogative is a collection of essays on legal topics as apparently unrelated as the doctrine of “judicial restraint” and the government’s security program. Although Dean Rostow displays a certain hostility to “academic” philosophers—in particular, it would appear, to Professor Hart and to Mr. Richard Wollheim—the unity of his book derives from the unity of his own, fairly familiar “philosophy.” Dean Rostow is an American legal realist and, I take it, an American liberal. As a realist Dean Rostow deplores legal formalism and legal positivism—for he takes them to encourage an undesirable separation of law and morals, and a faineant judicial philosophy. Judges, he insists, cannot simply apply rules; they must exercise that “sovereign prerogative of choice” of which Holmes wrote, and in so doing they will inevitably assert moral and political preferences. As an American liberal Dean Rostow would have the judiciary generally, and the Supreme Court in particular, assert what he takes to be liberal values, and his attitude toward the Court reflects his judgment of its fidelity to them. In what is surely the ablest essay in his collection Dean Rostow indicts the Court for its war-time acquiescence in the relocation of Japanese American citizens. Normally, however, he is complacent about the performance of the Court, and will defend the adequacy of its reasoning in the White Primary, the Restrictive Covenant and the School Segregation cases against all comers—Northern liberals as well as Southern bigots. The legalistic scruples expressed by liberal critics such as Professor Wechsler are traced directly to inadequacies in their legal philosophy.
Although the legal realists have long since convinced everyone that judges or at least judges in courts of last resort—cannot simply apply rules, Dean Rostow continues to suppose that judges and jurisprudential thinkers who disagree with his doctrines (and they include some of the most sophisticated legal thinkers of our time) have failed to learn their realistic lessons. Consequently, he never tires of invoking the ancient realist texts, and he appears to accept the alternatives of yesterday’s polemics as a fair formulation of the issues in today’s philosophy of law. While he claims that the Yale Law School, over which he presides, is the hottest bed of legal realism, he draws his arguments against opposing conceptions of the judicial process from those Harvard oracles, Oliver Wendell Holmes and Roscoe Pound. In The Common Law (1881) Holmes opined that “the life of the law has not been logic: it has been experience,” and in “Mechanical Jurisprudence” (1908) Dean Pound concurred: Law must be judged “by the results it achieves…, not by the beauty of its logical processes or the strictness with which its rules proceed from the dogmas it takes as its foundation.” If the judge cannot decide on the basis of “logic” (however beautiful) he must decide on the basis of what the realists are given to calling “values.” In their early debunking phase the realists—they have never been very clear about the distinction between causes and justifications—held that…
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