The uncontrollable power wielded by this court brings it very close to the most sensitive areas of public affairs. As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern.
What had become of these views on the part of Mr. Justice Frankfurter in May 1954? By that time, not merely thirteen Justices, but more than thirty members of the court over a period of fifty-eight years had upheld the constitutionality of racially separate schools. More impressive judicial sanction scarcely could be imagined. And what is to be said of an opinion, in a highly sensitive area of public affairs, not even rationalized by “the spirit of the Constitution” or the “plan and purpose” of the Constitution, but rather by “the effect of segregation on public education” and “the extent of psychological knowledge”? These provided the rationale of the _Brown_ decision, but Mr. Justice Frankfurter did not open his mouth in dissent.
Did the court have the power to do what it did? Mr. Justice Douglas, another of the nine, in other days had warned that long-run stability is best achieved when social and economic problems of the State and nation are kept under political management of the people. Writing in _49 Columbia Law Review_ some years ago, he observed sagely that “it is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created.” In May 1954, Mr. Justice Douglas did his bit to create just that instability.
Did the court have the power? That was the essence of Question 3. It was the court’s most profound inquiry, for it probed the very soul of judicial limitation and responsibility. Serious consideration of Question 3 would have required of the judges a respect for the wisdom and integrity of scores of judges and hundreds of State and Federal legislators, all equally sworn to uphold the Constitution, who had preceded them. The question should have suggested the utmost restraint, the most selfless exercise of judicial discipline. “Is it within the judicial power, in construing the amendment, to abolish segregation in public schools?”