A policy of judicial avoidance, otherwise referred to as "judicial restraint," has clearly been the dominant trend in the United States Supreme Court since Mr. Justice Holmes began to sit upon that bench at the beginning of this century. There has been an inclination to explain this change as revealing a tendency of the Court to follow a policy of laissez-faire toward the legislative and executive departments, and to stop at this formalistic explanation of this important aspect of the judicial function. The Court's increasing awareness of its own lack of technical competence in dealing with the many complex governmental problems, which are being assigned daily to other governmental agencies for consideration and solution, has been largely overlooked. The realization by the Supreme Court of its inexpertness, unpreparedness and inability to function well, rather than its lack of power and jurisdiction, is the real key to an understanding of what has been called the "constitutional revolution." The legal historian, therefore, will find it enlightening to go back to the opinions of Mr. Justice William Johnson who, at the very beginnings of our constitutional history, attempted for almost thirty years--although without success--to arrive at a functional interpretation of judicial power.
A. J. Levin,
MR. JUSTICE WILLIAM JOHNSON AND THE UNENVIABLE DILEMMA,
Mich. L. Rev.
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