Brief mention may be made of a plan for the selection and retirement of judges which has been worked out by some distinguished mem bers of the legal profession and is being pro moted by the American Judicature Society. This plan provides for the election by the peo ple for a short term of a chief justice who is to perform not merely judicial duties but also administrative duties in directing the work of the entire judicial organization. This chief jus tice is to appoint all the other judges for a term of three years. After a judge so appointed has served three years the question is presented to the voters "Shall Judge be retired?* This is a non-competitive recall election since no candidate opposes the sitting judge as vould be the case under the ordinary recall. If the people vote to recall the judge his successor is appointed by, the chief justice. If he is not recalled he continues in office for six years when he is again subjected to a non-competi tive recall election. If again retained in office he continues for nine years when the same process is repeated. If popular confidence is again expressed in him he then holds office for life. It is felt that this plan affords the proper degree of popular control over the judicial de partment of the government without destroying the independence of the courts by making them the playthings of popular passion or partisan machinations.
Power to Declare Laws Unconstitutional. —The power exercised by the American courts of holding unconstitutional and void acts of the legislature which are, in their judgment, in conflict with the constitution, State or Fed eral, is a power as unique as it is important. In no other important country in the world do the courts perform this function. Furthermore, it is not a power which the national Constitu tion or any of the early State constitutions ex pressly conferred upon the courts. It was exercised in a few isolated State cases just after the Revolution, hut it may be said to find its firm foundation as a principle of American constitutional law in the classic opinion of Chief Justice Marshall in 1803 in the case of Marhury Madison. It was there pointed out that our written constitution is a limitation upon legislative power. As such it becomes worth less if the legislature is left free to violate it impunity. mpunity. Some authority must, therefore, exist to enforce the constitutional limitations. This authority is most appropriately confided to the courts. They are charged with the duty of determining what the law is in order that they may apply that law in the adjudication of the rights of parties in litigation. When the constitution and a legislative enactment are in conflict this duty of determining what the law is involves the duty of enforcing the con stitution, which is the supreme law of the land, and of ignoring or nullifying the law. In so doing the courts are merely recognizing the obligation of the oath of office by which they bind themselves to uphold the Constitution of the United States. While the foregoing rea soning has not entirely escaped criticism it has seemed on the whole convincing and more than a century of acquiescence in the exercise of the power has relegated the question whether the courts were in the first instance justified in exercising it to the realm of academic and his torical controversy. Not a few of the State constitutions now provide expressly for the judicial decision of questions of constitu tionality and there is no State in which the courts do not exercise that power.
In exercising the power of deciding the constitutionality of statutes, the courts have im posed upon themselves certain restrictions. The more important of these may be enumerated as follows: First, the court will exercise the power only in actual litigation between parties whose material interests are involved. This means that unless required by the constitution to do so, as is the case in some half dozen States, the courts will not render advance or advisory opinions. Second, laws will not he declared invalid merely because judges regard them as unreasonable, inexpedient, unjust, or contrary to the "spirit of the constitution.* Third, questions of constitutionality will not he decided unless their decision is necessary to a determination of the case before the court. Fourth, courts will not concern themselves with the legislative motives lying back of the enact ment of a law in determining the validity of the law. Fifth, courts will not use the power of judicial review in regard to political ques tions, questions which the courts regard as con fided to the discretion of a co-ordinate branch of the government. Sixth, every statute is presumed to be constitutional and any reason able doubt upon that question is to be resolved in favor of its validity. Adherence to these general principles has had a useful effect in preventing the abuse by the courts of their power to invalidate laws. It may he safely asserted that, in spite of some questionable de cisions, the exercise of this power by the courts has been wholesome and beneficent and con stitutes in the minds of many the most _valu able American contribution to political Criticisms of Courts and Proposed Re In recent years the State and Federal administration of justice has been the subject of hitter attack, not only from laymen, but also from the bench and the bar on the ground of its inefficiency. The evils which are universally
admitted to exist are as follows: First, the administration of justice is entirely too slow. It is not uncommon for the highest court of a State to be two or three years behind in its work. It is not unusual for a case to be in the courts five or six years before final decision can be had. There are extreme cases in which 20 years or more have elapsed between the time a case was first placed upon the judicial docket and the time of ending the litigation. Second, most of these delays are wholly un necessary and do not serve in any way the ends of justice. This is due to our cumbersome and highly tedanical scheme of judicial procedure. It has sometimes occurred that fully half of the cases decided by a State Supreme Court are cases which raise, not questions of sub stantive law, but questions of legal technicality. Third, as a result of the two evils just men tioned, justice, instead of being cheap and readily accessible to all, is too often placed be yond the reach of the poor man. Among the more important proposals which have been made looking toward a more efficient ad ministration of justice, may be mentioned the following: (1) In the first place, it is urged that rules of procedure must be radically sim plified and that this should be done, not by legislators who are unfamiliar in the main with the real problem in hand, but by the courts themselves. Where courts have been allowed to recast these rules the results have been good. A notable case of this is the recasting of the rules of equity procedure by the Supreme Court of the United States. (2) A second remedy is to restrict the right of litigants to appeal to those cases in which the ground of appeal is actually related to law and justice. Reversals and re trials on pure technicalities should be abolished. (3) There is a movement in the direction of modifying the power of the common law jury especially in civil actions, making the procedure in jury trials less cumbersome, and even dispensing with the service of a jury in many cases. There is need for a radical change in the method of 'selecting jurors for criminal trials, a process which frequently consumes weeks or even months under our present sys tem. (4) In the fourth place, it has been pro posed that the principle of division of labor be applied to judicial work and separate courts be organized to deal with particular kinds of litigation. In this way judges would acquire an experience in dealing with certain types of cases which would greatly add to the efficiency and expedition with which these cases could be handled. Some steps have been taken in this direction in various places by the organization of probate courts, juvenile courts, women's courts, domestic relations courts, traffic courts and the like. (5) A most thorough-going and comprehensive program of reform is sanctioned by the American Judicature Society and many prominent members of the bar. It calls for a radical change in judicial organization. It is proposed that the entire judiciary of a State constitute a single court. This court should be composed of three branches to deal with petty or local matters, with cases now coming up in the State courts of original jurisdiction, and with all appeals. Each of these divisions would be under the administrative stipervisionilaf a chief justice who would have authority Lto assign the individual judges to :of judicial work, to transfer judges which were idle to those whose docket's weie crowded and to transfer cases from the wrong court to the right one without necessitating be ginning the case over again. In these and other ways the efficiency of the courts could lit enormously increased and the processes-6/ litigation simplified. Such courts would, of course, have the power to make their own rates of practice. The Municipal Court of Chicago is organized to a very large extent along these lines and has proved an interesting and sug gestive model to those interested in the reform of our judicial system.
With the thoughtful attention which is-bet ing given to these problems by men Of the highest ability and with the ever-grOwing popular demand for some relief from evils Of present methods of administering future, it is to be hoped and expected that progress in the direction of reform may be prompt and vigorous.
American Judicature -.'SO ciety, Journal and Bulletins; °Justice through Simplified Legal Procedure') (Annals of Ameri can Academy of Po.itical and Social Science, September 1917); Baldwin, S. E., 'The American Judiciary' (1905) ; Beard, Charles A., 'American Government and Politics' (rev. ed-., New York 1914); Beard, C. A., 'The Supreme Court and the Constitution' (1912); Carpenter, 'Judicial Tenure in the United States' (1918).'; Corwin, Edward S. 'The Doctrine of Judicial Review' (1914); Coxe, 'Judicial Power -and Unconstitutional Legislation' (1893) ; Haines, Charles Grove, 'The American Doctrine, -of Judicial Supremacy' (1914) ; McLaughlim-A. C„ The Courts, the Constitution and Parties' (1912); Munro, W. B., 'The Government Of the United States' (New York 1919); Store j% Moorfield, 'The Reform of Legal Procedure' (1911); Willoughby, Westel W., 'The Supreme Court of the United States' (1890). ' •-;