Foreword: The Passive Virtues

Harvard Law Review 75 (1961).


The volume of the Supreme Court’s business is steadily on the rise. It seems to be, quite simply, a direct function of the birth rate. But the number of important and far-reaching issues offered up for decision in any single Term is, in some part at least, a matter of the accidents of litigation. Accident, so far as we can tell, contrived to make the October Term, 1960, one of the most remarkable of record. There was no single litigation quite so spectacular as the Steel Seizure Case¬†of 1952, or the Segregation Cases of 1954 and 1955. But the Court was presented with an arresting variety of constitutional questions, truly to be described, in the phrase Marshall used in Marbury v. Madison, as “deeply interesting to the United States .. . .” And in contrast to what Marshall would have had us believe of the issue in Marbury, these questions were also “of an intricacy proportioned to [their] interest.”

Yale Law School