t was proclaimed that the Supreme Court
exercised only judicial functions and that any attempt on the part of
the President or Congress to interfere with them would make that body
the organ of faction or class. But, as a matter of fact, the danger
which they foresaw to the Supreme Court was not a danger growing out of
its judicial, but out of its legislative functions. It was not because
the Supreme Court was a purely judicial body, but because it exercised a
supremely important legislative function, that they were so solicitous
to guard it against anything approaching popular control. The threefold
division of governmental powers into legislative, executive, and
judicial, as shown in a preceding chapter, has no logical basis. There
are, as Professor Goodnow has said,[195] but two functions of
government, that of expressing and that of executing the will of the
state. The Supreme Court, in so far as it is a purely judicial
body--that is, a body for hearing and deciding cases--is simply a means
of executing the will of the state. With the performance of this
function there was little danger that any democratic movement would
interfere. Nor was this the danger which the conservative classes really
feared, or which they wished to guard against. What they desired above
all else was to give the Supreme Court a final voice in expressing the
will of the state, and by so doing to make it operate as an effective
check upon democratic legislation. It is this power of expressing the
will of the state which our conservative writers defend as the
pre-eminently meritorious feature of our judicial system. Indeed, this
is, in the opinion of the conservative class, the most important of all
the checks on democracy. Any suggestion of using the power vested in
Congress and the President to reorganize the Supreme Court is naturally
enough denounced as the most dangerous and revolutionary of political
heresies. It is not probable, however, that the Supreme Court would much
longer be permitted to thwart the will of the majority if the other
branches of the Federal government were thoroughly imbued with the
belief in democracy. As explained in Chapter V, the Constitution
contains no hint of this power to declare acts of Congress null and
void. It was injected into the Constitution, as the framers intended, by
judicial interpretation, and under the influence of a thoroughly
democratic President, and Congress might be eliminated in the same way.