FORTAS’ FORTRESS
In reaction to the Griffin-Conservative opposition to the confirmation of Abe Fortas as Chief Justice of the United States Supreme Court, Senator Hart, also of Michigan, in a televised interview decried the fact that the question of confirmation seemed to compromise the principle of the separation of the three branches of government. He deplored the fact that confirmation had become a political issue which tended to threaten the Court’s right to Olympian aloofness to the issues which are the basis for party strife and faction.
A look at the recent history of the Court, however, will show that the pragmatic political liberals are trying to have it both ways with their protege, Fortas. Not only has it been the case that Fortas was involved with the Chief Executive, but the liberal pragmatist predecessors of Fortas on the Court were the ones who denied the notion that law is eternal and changeless. They were the ones who insisted that law is subject to change on the basis of political demand.
Oliver Wendell Holmes, Jr. suggested that law is what the courts make it. “Individual liberty extends no farther than what the crowd will fight for, be it religion or a glass of beer.” Or again, “I cannot get worked up over the problem of evil. It strikes me as twaddle.” (Letters, Vol. II, p. 866, Aug. 20, 1929). As to the possibility of any eternal verities, Holmes goes on as follows. “Truth may be cosmically ultimate for all I know. I merely surmise that our last word is not the last word any more than that of horses or dogs. It is our last word, nonetheless, and I don’t see why we shouldn’t do our job in the station in which we were born without waiting for an angel to assure us that it is the jobbiest job in jobdom. (The Holmes-Cohen Correspondence, Felix S. Cohen ed. New York, 1948, p. 110, May 27, 1917).
Prior to the domination of the Court by pragmatic liberals, non· Christian jurists had generally appealed to universal or natural law. This was true of the Stoics, Cicero and others down to the present. This law was of divine origin according to various definitions of divinity or it was inherent in the nature of the universe as a kind of cosmic intelligence. It stood above the foibles and fads of men. Kings and legislators were subject to it and must take cognizance of it. And while this law concept was immanentistic and apostate, it agreed with the Christian approach to law in the fact that it assumed that law was changeless and objective over against the passing fancies of man in any particular moment in history.
Not so, said the pragmatists. Dewey said that all goals are to be temporary and all ends are changing with the process of attaining them. Ends are extremely fugitive. They evade us as we approach them, quickly changing before they have been realized.
As a leader of the pragmatist jurists, Holmes said, “All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the ‘de facto’ supreme power in the community, and that the spread of an educated sympathy should reduce the sacri6ce of minorities to a minimum.”
If there are no abiding principles of law, either natural or divine, then, it seems to me, consistency would demand that the pragmatic liberals ought to welcome a test of their work on the basis of current political trends, be they conservative or liberal. There ought to be a gracious acceptance of a repudiation of the present direction of the Court if that is reflected by the Griffin-led opposition to the confirmation of Abe Fortas.
On the other hand, if the Justices consider themselves the custodians of certain divine mandates and eternal verities, they should adjudicate these according to their best lights and then ignore the passing political parade. If they so judge, then they can stand aloof from the turmoil of election year politics. And only if they so judge, do those who concur in their opinions have a right to decry the fact that the confirmation of Abe Fortas has become a political pigskin in this election year.
Then also, Abe Fortas should not insinuate himself into the councils of the Chief Executive nor should he be participating in university seminars where the size of the fee is based on the prestige of the Bench and reaped as a kind of bench-bonus.
It is quite common for politicians to suggest to the electorate that they can entertain contradictory assumptions. Voters are often told that, if elected, the political aspirant will increase services while at the same time reducing taxes, while logic and common sense dictates that this is an impossibility. Senator Hart, even in political philosophies one cannot have his cake and eat it. It would be well for you to know this.
NICK VAN TIL
Nick Van Til is Professor of Philosophy at Dordt College, Sioux Center, Iowa.
In reaction to the Griffin-Conservative opposition to the confirmation of Abe Fortas as Chief Justice of the United States Supreme Court, Senator Hart, also of Michigan, in a televised interview decried the fact that the question of confirmation seemed to compromise the principle of the separation of the three branches of government. He deplored the fact that confirmation had become a political issue which tended to threaten the Court’s right to Olympian aloofness to the issues which are the basis for party strife and faction.
A look at the recent history of the Court, however, will show that the pragmatic political liberals are trying to have it both ways with their protege, Fortas. Not only has it been the case that Fortas was involved with the Chief Executive, but the liberal pragmatist predecessors of Fortas on the Court were the ones who denied the notion that law is eternal and changeless. They were the ones who insisted that law is subject to change on the basis of political demand.
Oliver Wendell Holmes, Jr. suggested that law is what the courts make it. “Individual liberty extends no farther than what the crowd will fight for, be it religion or a glass of beer.” Or again, “I cannot get worked up over the problem of evil. It strikes me as twaddle.” (Letters, Vol. II, p. 866, Aug. 20, 1929). As to the possibility of any eternal verities, Holmes goes on as follows. “Truth may be cosmically ultimate for all I know. I merely surmise that our last word is not the last word any more than that of horses or dogs. It is our last word, nonetheless, and I don’t see why we shouldn’t do our job in the station in which we were born without waiting for an angel to assure us that it is the jobbiest job in jobdom. (The Holmes-Cohen Correspondence, Felix S. Cohen ed. New York, 1948, p. 110, May 27, 1917).
Prior to the domination of the Court by pragmatic liberals, non· Christian jurists had generally appealed to universal or natural law. This was true of the Stoics, Cicero and others down to the present. This law was of divine origin according to various definitions of divinity or it was inherent in the nature of the universe as a kind of cosmic intelligence. It stood above the foibles and fads of men. Kings and legislators were subject to it and must take cognizance of it. And while this law concept was immanentistic and apostate, it agreed with the Christian approach to law in the fact that it assumed that law was changeless and objective over against the passing fancies of man in any particular moment in history.
Not so, said the pragmatists. Dewey said that all goals are to be temporary and all ends are changing with the process of attaining them. Ends are extremely fugitive. They evade us as we approach them, quickly changing before they have been realized.
As a leader of the pragmatist jurists, Holmes said, “All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the ‘de facto’ supreme power in the community, and that the spread of an educated sympathy should reduce the sacri6ce of minorities to a minimum.”
If there are no abiding principles of law, either natural or divine, then, it seems to me, consistency would demand that the pragmatic liberals ought to welcome a test of their work on the basis of current political trends, be they conservative or liberal. There ought to be a gracious acceptance of a repudiation of the present direction of the Court if that is reflected by the Griffin-led opposition to the confirmation of Abe Fortas.
On the other hand, if the Justices consider themselves the custodians of certain divine mandates and eternal verities, they should adjudicate these according to their best lights and then ignore the passing political parade. If they so judge, then they can stand aloof from the turmoil of election year politics. And only if they so judge, do those who concur in their opinions have a right to decry the fact that the confirmation of Abe Fortas has become a political pigskin in this election year.
Then also, Abe Fortas should not insinuate himself into the councils of the Chief Executive nor should he be participating in university seminars where the size of the fee is based on the prestige of the Bench and reaped as a kind of bench-bonus.
It is quite common for politicians to suggest to the electorate that they can entertain contradictory assumptions. Voters are often told that, if elected, the political aspirant will increase services while at the same time reducing taxes, while logic and common sense dictates that this is an impossibility. Senator Hart, even in political philosophies one cannot have his cake and eat it. It would be well for you to know this.
NICK VAN TIL
Nick Van Til is Professor of Philosophy at Dordt College, Sioux Center, Iowa.
