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Gerald J. Whalen, Presiding Justice, Appellate Division, Fourth Department

In a 1937 speech to the New York State Bar Association, then-Assistant Attorney General Robert H. Jackson offered a stark view of the Supreme Court’s role in government. He posited that the judicial branch, with its “[u]nreasoning devotion to precedent” in ignorance of the realities of life, had created a “[g]overnment by litigation” in contravention of effective policy enforcement. Robert H. Jackson, Address Before the New York State Bar Association (New York, N.Y., Jan. 29, 1937). “Congress looks forward to results, the courts look backward to precedents, the President sees wrongs and remedies, the Courts look for limitations and express powers. The pattern requires the Court to go forward by looking backward.” Id. Jackson’s specific target that night was the monopolizing of the Court by the legal profession, with its penchant for technical legal patterns only attorneys can unravel. Jackson found that the conflict in philosophy between this staid legal thinking and expeditious political progress created a “struggle between every progressive administration in our history against the Federal bench.” Id.

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