e by constitutional
amendment, and I should suppose that few would now dispute that the
Court when it so decided made a serious political and social error. As
Mr. Justice White pointed out, the judges undertook to deprive the
people, in their corporate capacity, of a power conceded to Congress "by
universal consensus for one hundred years."[15] These words were used in
the first argument, but on the rehearing the present Chief Justice waxed
warm in remonstrating against the unfortunate position in which his
brethren placed the Court before the nation, protesting with almost
passionate earnestness against the reversal by half-a-dozen judges of
what had been the universally accepted legal, political, and economic
policy of the country solely in order that "invested wealth" might be
read "into the constitution" as a favored and protected class of
property. Mr. Justice White closed by saying that by this act the
Supreme Court had "deprived [the Government] of an inherent attribute of
its being."[16] I might go on into endless detail, but I apprehend
that these cases, which are the most important which have ever arisen on
this issue, suffice for my purpose.[17] I contend that no court can,
because of the nature of its being, effectively check a popular majority
acting through a coordinate legislative assembly, and I submit that the
precedents which I have cited prove this contention. The only result of
an attempt and failure is to bring courts of justice into odium or
contempt, and, in any event, to make them objects of attack by a
dominant social force in order to use them as an instrument, much as
Charles II used Jeffreys.

The moment we consider the situation philosophically we perceive why
using a court to control a coordinate legislature must, nearly
inevitably, be sooner or later fatal to the court, if it asserts its
prerogative. A court to be a fit tribunal to administer the municipal
law impartially, or even relatively impartially, must be a small body of
men, holding by a permanent and secure tenure, guarded from all pressure
which may unduly influence them. Also they should be men of much
experience and learned in the precedents which should make the rules
which they apply stable and consistent. In short, a court should be
rigid and emotionless. It follows that it must be conservative, for its
members should long have passed that period of youth when the mind is
sensitive to new impressions. Were it otherwise, law