(Michael Scarcella/NLJ)

In 1906, Roscoe Pound presented “The Causes of Popular Dissatisfaction with the Administration of Justice” to the American Bar Association convention. It is a gift that keeps on giving. He probes the “causes of the dissatisfaction with the administration of justice,” limiting his focus to “civil justice,” and groups the causes under four “main heads.”

Two of them are “[c]auses for dissatisfaction with any legal system” and “causes lying in our American judicial organization and procedure.”

The essay’s insights and scholarship are as deep as it is timeless. More to the point, it puts into historical perspective the current popular dissatisfaction about the appropriate response by the president and the Senate to Justice Antonin Scalia’s death, dissatisfaction that is at least in significant part the product of the inherent and uniquely American causes for popular dissatisfaction with the administration of justice. Although many profound (and lyrical) passages must be omitted, what follows are some of Pound’s thoughts on those causes.

“Justice, which is the end of law, is the ideal compromise between the activities of all in a crowded world. The law seeks to harmonize those activities and to adjust the relations of every man with his fellows so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult.”

The “violent opposition which the doctrine of judicial power over unconstitutional legislation at first encountered” had yielded to a “very marked” “tendency to give the fullest scope to the … doctrine of supremacy of law” and to “tie down administration [of justice]” by, among other things, “ judicial review.”

But in 1906, as Pound wrote, “the contrary tendency is no less marked. Courts are distrusted, and executive boards and commissions with summary and plenary powers, freed, so far as constitution will permit, from judicial review, have become the fashion.”

“If to meet this inherent difficulty [of reconciling the generality of rules with the particularities of individual disputes] in administering justice according to the law we introduce a judicial dispensing power, the result is uncertainty and an intolerable scope for the personal equation of the magistrate. If we turn to the other extreme and pile up exceptions and qualifications and provisos, the legal system becomes cumbrous and unworkable. Hence the law has always ended in a compromise, in a middle course between wide discretion and over-minute legislation. … In consequence, [the result] will of necessity appear more or less arbitrary and more or less in conflict with the ethical notions of individuals.”

“Another source of irritation at our American courts is political jealousy due to the strain put upon our legal system by the doctrine of the supremacy of law. By virtue of this doctrine, which has become fundamental in our polity, the law restrains, not individuals alone, but a whole people. The people so restrained would be likely in any event to be jealous of the visible agents of restraint. Even more is this true in that the subjects which our constitutional polity commits to the courts are largely matters of economics, politics, and sociology upon which a democracy is peculiarly sensitive. Not only are these matters made into legal questions, but they are tried as incidents of private litigation.”

“Lack of general ideas and absence of any philosophy of law, which has been characteristic of our law … contributes its mite also toward the causes of dissatisfaction with the courts. … Hence if the law does not work well, says Bentham with fine sarcasm, ‘it is never the law itself that is in the wrong, it is always some wicked interpreter of the law that has corrupted and abused it.”

If he were alive today, it’s hard to doubt that Pound would conclude that the two camps that assail the other side’s “wicked interpreter[s] of the law” on the Supreme Court “understand each other none too well.” And in these particularly strident times, the task of building that “ideal compromise” seems far more than “extremely difficult.”

But it could do no harm if the polity had a wider appreciation both of Pound’s insights into the causes of popular dissatisfaction with the administration of justice, and for his generosity of mind and gracious style.

In 1906 , Roscoe Pound presented “The Causes of Popular Dissatisfaction with the Administration of Justice ” to the American Bar Association convention. It is a gift that keeps on giving. He probes the “causes of the dissatisfaction with the administration of justice,” limiting his focus to “civil justice,” and groups the causes under four “main heads.”

Two of them are “[c]auses for dissatisfaction with any legal system” and “causes lying in our American judicial organization and procedure.”

The essay’s insights and scholarship are as deep as it is timeless. More to the point, it puts into historical perspective the current popular dissatisfaction about the appropriate response by the president and the Senate to Justice Antonin Scalia ‘s death, dissatisfaction that is at least in significant part the product of the inherent and uniquely American causes for popular dissatisfaction with the administration of justice. Although many profound (and lyrical) passages must be omitted, what follows are some of Pound’s thoughts on those causes.

“Justice, which is the end of law, is the ideal compromise between the activities of all in a crowded world. The law seeks to harmonize those activities and to adjust the relations of every man with his fellows so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult.”

The “violent opposition which the doctrine of judicial power over unconstitutional legislation at first encountered” had yielded to a “very marked” “tendency to give the fullest scope to the … doctrine of supremacy of law” and to “tie down administration [of justice]” by, among other things, “ judicial review.”

But in 1906 , as Pound wrote, “the contrary tendency is no less marked. Courts are distrusted, and executive boards and commissions with summary and plenary powers, freed, so far as constitution will permit, from judicial review, have become the fashion.”

“If to meet this inherent difficulty [of reconciling the generality of rules with the particularities of individual disputes] in administering justice according to the law we introduce a judicial dispensing power, the result is uncertainty and an intolerable scope for the personal equation of the magistrate . If we turn to the other extreme and pile up exceptions and qualifications and provisos, the legal system becomes cumbrous and unworkable. Hence the law has always ended in a compromise, in a middle course between wide discretion and over-minute legislation. … In consequence, [the result] will of necessity appear more or less arbitrary and more or less in conflict with the ethical notions of individuals.”

“Another source of irritation at our American courts is political jealousy due to the strain put upon our legal system by the doctrine of the supremacy of law. By virtue of this doctrine, which has become fundamental in our polity, the law restrains, not individuals alone, but a whole people. The people so restrained would be likely in any event to be jealous of the visible agents of restraint. Even more is this true in that the subjects which our constitutional polity commits to the courts are largely matters of economics, politics, and sociology upon which a democracy is peculiarly sensitive. Not only are these matters made into legal questions, but they are tried as incidents of private litigation.”

“Lack of general ideas and absence of any philosophy of law, which has been characteristic of our law … contributes its mite also toward the causes of dissatisfaction with the courts. … Hence if the law does not work well, says Bentham with fine sarcasm, ‘it is never the law itself that is in the wrong, it is always some wicked interpreter of the law that has corrupted and abused it.”

If he were alive today, it’s hard to doubt that Pound would conclude that the two camps that assail the other side’s “wicked interpreter[s] of the law” on the Supreme Court “understand each other none too well.” And in these particularly strident times, the task of building that “ideal compromise” seems far more than “extremely difficult.”

But it could do no harm if the polity had a wider appreciation both of Pound’s insights into the causes of popular dissatisfaction with the administration of justice, and for his generosity of mind and gracious style.