There is no rule of law involved. There is only opinion or
prejudice, or pecuniary interest. The judges admit frankly that this is
so. They avow that they try to weigh public opinion, as well as they
can, and then vote. In 1911 Mr. Justice Holmes first explained that the
Police Power extended to all great public needs, and then went on to
observe that this Police Power, or extraordinary prerogative, might be
put forth by legislatures "in aid of what is sanctioned by usage, or
held by ... preponderant opinion to be ... necessary to the public
welfare."[29]
A representative chamber reaches its conclusions touching "preponderant
opinion" by a simple process, but the influences which sway courts are
obscurer,--often, probably, beyond the sphere of the consciousness of
the judges themselves. Nor is this the worst; for, as I have already
explained, the very constitution of a court, if it be a court calculated
to do its legitimate work upon a lofty level, precludes it from keeping
pace with the movement in science and the arts. Necessarily it lags some
years behind. And this tendency, which is a benefit in the dispensation
of justice as between private litigants, becomes a menace when courts
are involved in politics.
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