Document Type


Publication Date

Fall 1961


Compulsory disclosure, Judicial review, Separation of powers, Supreme Court of the United States


Constitutional Law | Courts | First Amendment


Involvement of the Supreme Court of the United States with highly charged public issues understandably occasions fresh debate concerning the proper role of the Court in determining questions of ultimate governmental power, in short, debate over the doctrine of judicial review.

As it is sometimes difficult for the judge to distinguish between what is unconstitutional and what is merely unwise, so it is difficult for the critic to disassociate his reaction to the results reached in a given case from his evaluation of the competence of the particular judicial performance. For some the failure to draw such a line robs criticism of much of its usefulness and reduces it to the level of determining ownership of the proverbial gored ox. For others the effort to make such distinctions is simply unrealistic; nice questions regarding the nature of the process are of interest only in the context of larger purposes served or thwarted by the particular decision.

This essay is predicated upon the propositions that means are important, that the reasons advanced by courts in support of their judgments are not simply window dressing, and that questions relating to what courts ought and ought not to consider are of real and not merely apparent significance.


This article predates the author's affiliation with Cornell Law School.

Publication Citation

Published in: Boston University Law Review, vol. 41, no. 4 (Fall 1961).