In response to:
Mr. Justice Pangloss from the October 22, 1964 issue
To the Editors:
…Yosal Rogat counters Justice Douglas’s alleged errors with what he evidently believes are superior views, along the following lines:
But liberal democracies are pledged to respond more to what is generally wanted than to what is thought by a few to be needed. Even if some men must, or should, be allowed to decide what is good for us, it is hard to see why it should be those nine men.
Are we to infer that the reviewer objects, not only to Justice Douglas, but to all nine of the Supreme Court Justices? Does he espouse a governmental system which would dispense with a Supreme Court?
Mr. Rogat states that the judge’s task is to “make difficult analogical comparisons to decide what similarities among cases (i.e., precedents) seem important.” He continues that in this way the judges “try to reconcile both the desire to apply the same law to all persons and the need to reflect changes in what seems important to society.” This is only one of the many approaches to the judicial task. That there are other approaches is evident. It also is evident that Mr. Rogat’s approach would be inadequate if not erroneous, in dealing with constitutional questions, for example, such as are involved in the Civil Rights Act of 1964.
Mr. Rogat complains that Justice Douglas is “a reductionist.” This charge seems especially ill-founded. Mr. Rogat, I suggest, should re-read the dissenting opinion of Mr. Justice Douglas in Standard Oil Company of California vs. U. S., 337 U. S. 293. The approach of Justice Douglas in that case (which is typical of his general approach) was to project the state of affairs which would be likely to result from a decision. The justification for the decision he urged was based on an evaluation of such projection, taking into account established rules of law as well as objectives.
Books written for laymen properly may omit technical methodological discussions. Complaining that the complexities have not been sufficiently shown in the Douglas books is inappropriate. Moreover, it seems that the reviewer has been guilty of gratuitous and unwarranted labeling with emotion-charged words.
James L. Magrish
Yosal Rogat replies:
1) I approve of a Supreme Court.
2) I wrote about difficulties inherent in responsible judicial decision.
3) If Mr. Magrish means the Court cannot present a reasoned constitutional basis for upholding the Civil Rights Act, I disagree.
4) “Books written for laymen” need not be inaccurate. Witness Anthony Lewis.
December 3, 1964