Among European nations England has long represented intelligent conservatism, and at the heart of her conservatism lay the House of Lords.  Through many centuries; and under many vicissitudes this ancient chamber had performed functions of the highest moment, until of late it had come to occupy a position not dissimilar to that which the Supreme Court of the United States yet holds.  On one side it was the highest legal tribunal of the Empire, on the other it was a non-representative assembly, seldom indeed originating important legislation, but enjoying an absolute veto on legislation sent it from the Commons.  One day in a moment of heated controversy the Lords vetoed a bill on which the Commons had determined.  A dissolution followed and the House of Lords, as a political power, faded into a shadow; yet, notwithstanding this, its preeminence as a court has remained intact.  Were a similar clash to occur in America no such result could be anticipated.  Supposing a President, supported by a congressional majority, were to formulate some policy no more subversive than that which has been formulated by the present British Cabinet, and this policy were to be resisted, as it surely would be, by potent financial interests, the conflicting forces would converge upon the Supreme Court.  The courts are always believed to tend toward conservatism, therefore they are generally supported by the conservative interest, both here and elsewhere.  In this case a dilemma would be presented.  Either the judges would seek to give expression to “preponderant” popular opinion, or they would legislate.  In the one event they would be worthless as a restraining influence.  In the other, I apprehend, a blow would fall similar to the blow which fell upon the House of Lords, only it would cut deeper.  Shearing the House of Lords of political power did not dislocate the administration of English justice, because the law lords are exclusively judges.  They never legislate.  Therefore no one denounced them.  Not even the wildest radical demanded that their tenure should be made elective, much less that they should be subjected to the recall.  With us an entirely different problem would be presented for solution.  A tribunal, nominally judicial, would throw itself across the path of the national movement.  It would undertake to correct a disturbance of the social equilibrium.  But what a shifting of the social equilibrium means, and what follows upon tampering with it, is a subject which demands a chapter by itself.

FOOTNOTES: 

[18] 6 Cranch 135.

[19] New Jersey v.  Wilson, 7 Cranch 164; decided in 1812.

[20] Coates v.  Mayor of New York, 7 Cowen 585.

[21] Charles River Bridge v.  Warren Bridge, 11 Peters 420, 553.

[22] Boston & Maine Railroad v.  County Commissioners, 79 Maine 393.

[23] Wynehamer v.  The People, 13 N.Y. 393.