McCloskey Gives Supreme Court Two Cheers and One Raspberry

Robert G. McCloskey, Jonathan Trumbull professor of American History and Government, said yesterday that the Warren Court has "failed to provide rational links between the pronouncements and policies of today and the principles of the Constitution."

McCloskey, who generally praised the Court before a crowd in Emerson Hall for the Thursday afternoon Lecture Series, said that he "felt justified in mustering two cheers, but not three," for the Court.

"The Warren Court," said McCloskey, "has been the most active in American constitutional history. In fact, never in the history of world jurisprudence has a court played such a salient part in the governing of a nation."

McCloskey said that the Supreme Court must fulfill three functions: "preceptor of political morality"; a "governing body," that is, an organization whose authority is accepted and whose laws are "feasible"; and protector of "the reason and rational continuity of our constitutional

"The Warren Court has performed as moral preceptor pretty well," McCloskey said. "When Warren's term began, the American constitutional house was in a surprisingly primitive state ... the Supreme Court under Warren has remodeled it extensively, and, I think, wisely. It has helped bring America, kicking and screaming, into the 20th century, and if we haven't quite made it, it's not the Court's fault."

The Supreme Court has also successfully performed its second function, that of "governing effectively," said McCloskey, for "despite all the Court tried to do and has dared to do, the Court still has as strong prestige as ever."

But McCloskey then assailed the Court because, he said, "it has lacked the will and the capacity to provide reasoned legal arguments for it's landmark decisions."

McCloskey said that "among the members of the Court, Justices Felix Frank-furter, William Douglas and Hugo Black have been best equipped intellectually to provide craftmanship-like opinions."

"But Frankfurter," McCloskey said, "during most of his tenure went against the main trends of Court opinion. Douglas has been disinclined to spend time producing decisions that close legal loop-holes, and Black, for reasons obscure to me, has chosen a method of opinion writing that is assertive rather than explanatory.