The Courts and Public Opinion
MANY are disposed to take exception to popular criticism of the courts. This point of view merits consideration because it is entertained by some who are genuinely progressive in spirit as well as by reactionaries. It is the position of those who think the tyranny of the majority is our greatest menace and who look upon the courts as the bulwark not only of property, but of personal liberty. It reflects the traditional respect in which the courts are held.
It is quite generally conceded that there are certain limitations to criticizing the courts which need not be observed in the discussion of other matters. During the trial of a case, remarks which obstruct the administration of justice are clearly out of order. Neither can the expression of views well be justified which counsel resistance to the decrees of the courts after they have once been rendered. So long as the decision of a court stands as the law of the land, it should be obeyed, unless an exception be made where matters of private conscience are involved. But this in no wise precludes bringing a similar case before the court with a view to having the point at issue reargued and the decision reversed, neither does it preclude popular discussion of the grounds upon which an objectionable decision rests. Starte decisis is a rule which admits of exceptions. The second legal-tender case is a conspicuous example. The view expressed by the Supreme Court in the Dartmouth College case has been "substantially modified, if not abrogated altogether." Those who object to any and every criticism of court decisions forget that the law is not a hard and fast thing, but is all the time in the making, changing with the prevailing sense of right, and that discussion and criticism by the laity as well as by members of the bench and bar are helpful to this end. When there is great diversity of opinion among members of the bench upon a question, the general public can not well be denied taking part in the discussion, especially when some question of governmental policy is involved in regard to
- Christopher G. Tiedeman, "The Unwritten Constitution of the U. S.," p. 66.