Judicial Criticism of Legislation by Courts

Authors

Charles G. Haines, Whitman College

Abstract

In the application of the doctrine of judicial review of legislative acts, the federal courts of the United States have not infrequently been criticised for usurping part of the functions of the legislature. The criticisms have increased to such an extent as to raise an issue of national significance. Recently, charges against the judiciary for the usurpation of legislative functions have been made rather frequently by the justices of our federal Supreme Comt. The late Associate Justice Harlan, dissenting in part from the reasoning of the majority of the court in the Standard Oil case, brought such a criticism against his associates. "The court, by its decision, when interpreted by the language of its opinion," he declared, "has not only upset the long-settled interpretation of the Sherman Anti-Trust Act, but has usurped the constitutional functions of the legislative branch of the government. After many years of public service at the National Capitol, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad, in our land, a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction." A similar opinion was rendered by him in the case of United States v. American Tobacco Company. This emphatic protest from one of the most honored members of the highest judicial tribunal came as a shock to many who heretofore had implicit confidence in the opinions and judgments of the Supreme Court. It has tended to give greater emphasis to the contention on the part of many outside of halls of justice that the federal judiciary has assumed functions beyond the realm which belongs to the courts and has definitely invaded the field of the legislative department of government.

Recommended Citation

Charles G. Haines, Judicial Criticism of Legislation by Courts, 11 Mich. L. Rev. 26 (1912).
Available at: https://repository.law.umich.edu/mlr/vol11/iss1/3