FROM ISSUE NUMBER 65 - FALL 1981 GO TO TABLE OF CONTENTS

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Inside Felix Frankfurter

ROBERT H. BORK

THE performance of the Supreme Court is once more a national political issue. Among socially conservative groups, intense dissatisfaction with the Court’s rulings on abortion, busing, and school prayer have triggered legislative proposals. Some bills would deprive the Court of appellate jurisdiction over these subjects; another would modify by statute the result of the abortion decision, Roe v.  Wade. Scholarly opinion is sharply divided about the constitutionality and propriety of these responses. On the one hand, it seems clear to many, not just the constituencies against abortion and busing, that the Court is adrift and frequently performing not a constitutional but a legislative function. On the other hand, it is not clear to all of those same observers that the situation is so irretrievable that remedies should be applied which, in principle, threaten the entire concept of judicial supremacy in applying the Constitution. Anger, particularly about the abortion decision, is so great, however, that there is a chance some legislation of this sort will be enacted. It is entirely conceivable that we are headed for a constitutional crisis, a confrontation between the democratic and judicial branches of government.

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