FULL FAITH AND CREDIT: MISCELLANY
Full Faith and Credit in Federal Courts
By the terms of 28 U.S.C. Sec. Sec. 1738-1739, the rule comprised therein pertains not merely to recognition by state courts of the records and judicial proceedings of courts of sister States but to recognition by ``every court within the United States,'' including recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United States. The federal courts are bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister States. [140]
Where suits to enforce the laws of one State are entertained in courts of another on principles of comity, federal district courts sitting in that State may entertain them and should, if they do not infringe federal law or policy. [141]
However, the refusal of a territorial court in Hawaii, having jurisdiction of the action which was on a policy issued by a New York insurance company, to admit evidence that an administrator had been appointed and a suit brought by him on a bond in the federal court in New York wherein no judgment had been entered, did not violate this clause. [142]
140. Cooper v. Newell, 173 U.S. 555, 567 (1899), See also Pennington v. Gibson, 16 How. (57 U.S.) 65, 81 (1854); Cheever v. Wilson, 9 Wall. (76 U.S.) 108, 123 (1870); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232 U.S. 51 (1914); Baldwin v. Traveling Men's Assn., 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292 U.S. 190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry, 449 U.S. 90 (1980); Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982).
141. Milwaukee County v. White Co., 296 U.S. 268 (1935).
142. Equitable Life Assurance Society v. Brown, 187 U.S. 308 (1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).
---------------------------------------------------------------------------
The power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States is conferred by other provisions of the Constitution, such as those which declare the extent of the judicial power of the United States, which authorize all legislation necessary and proper for executing the powers vested by the Constitution in the Government of the United States, and which declare the supremacy of the authority of the National Government within the limits of the Constitution. As part of its general authority, the power to give effect to the judgment of its courts is coextensive with its territorial jurisdiction.143 143. Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assurance Co. v. Grand View Assn., 203 U.S. 106 (1906); Louisville & N.R.R. Co. v. Stock Yards Co., 212 U.S. 132 (1909); Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55 (1909); West Side R.R. Co. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer, 265 U.S. 30, 33 (1924).
---------------------------------------------------------------------------
Evaluation Of Results Under Provision Thus the Court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain classes of defendants in local actions in which the plaintiff's claim was the outgrowth of a relationship formed *extraterritorially. But can the Court stop at this point? If it is true, as Chief Justice Marshall once remarked, that ``the Constitution was not made for the benefit of plaintiffs' alone,'' so also it is true that it was not made for the benefit of defendants alone. The day may come when the Court will approach the question of the relation of the full faith and credit clause to the extrastate operation of laws from the same angle as it today views the broader question of the scope of state legislative power. When and if this day arrives, state statutes and judicial decisions will be given such extraterritorial operation as seems reasonable to the Court to give them. In short, the rule of the dominance of legal policy of the forum State will be superseded by that of judicial review. [144]
[144] Reviewing some of the cases treated in this section, a writer in 1926 said: ``It appears, then, that the Supreme Court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts...although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear.'' Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws, 39 Harv. L. Rev. 533, 562 (1926). It can hardly be said that the law has been subsequently clarified on this point.
---------------------------------------------------------------------------
The question arises whether the application to date, not by the Court alone but by Congress and the Court, of Article IV, Sec. 1, can be said to have met the expectations of its Framers. In the light of some things said at the time of the framing of the clause this may be doubted. The protest was raised against the clause that, in vesting Congress with power to declare the effect state laws should have outside the enacting State, it enabled the new government to usurp the powers of the States, but the objection went unheeded. The main concern of the Convention, undoubtedly, was to render the judgments of the state courts in civil cases effective throughout the Union. Yet even this object has been by no means completely realized, owing to the doctrine of the Court, that before a judgment of a state court can be enforced in a sister State, a new suit must be brought on it in the courts of the latter, and the further doctrine that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from this proposition is that the sister State is under no constitutional compulsion to give it a forum. These doctrines were first clearly stated in the McElmoyle case and flowed directly from the new states' rights premises of the Court, but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. Also, the clause seems always to have been interpreted on the basis of the assumption that the term, ``judicial proceedings,'' refers only to final judgments and does not include intermediate processes and writs, but the assumption would seem to be groundless, and if it is, then Congress has the power under the clause to provide for the service and execution throughout the United States of the judicial processes of the several States.
SCOPE OF POWERS OF CONGRESS UNDER PROVISION
Under the present system, suit ordinarily has to be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. What could be more irrational? ``Granted that no state can of its own volition make its process run beyond its borders . . . is it unreasonable that the United States should by federal action be made a unit in the manner suggested?'' [145]
[145] Cook, The Power of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 430 (1919).
---------------------------------------------------------------------------
Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. Congress has the power under the clause to decree the effect that the statutes of one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of state legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.
JUDGMENTS OF FOREIGN STATES
Doubtless Congress, by virtue of its powers in the field of foreign relations, might also lay down a mandatory rule regarding recognition of foreign judgments in every court of the United States. At present the duty to recognize judgments even in national courts rests only on comity and is qualified in the judgment of the Supreme Court, by a strict rule of parity. [146]
[146] No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations. Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185 (1912). See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that ``the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary.'' At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity, Ritchie v. McMullen, 159 U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hong Kong, which was rendered ``after a fair trial by a court having jurisdiction of the parties.'' Another instance of international cooperation in the judicial field is furnished by letters rogatory. See 28 U.S.C. Sec. 1781. Several States have similar provisions, 2 J. Moore, Digest of International Law (Washington: 1906), 108-109.
---------------------------------------------------------------------------
Constitution of the United States of America -- Analysis and Interpretation
("CONSTITUTION ANNOTATED")
Published in 1964 as Senate Document Numbered 39, Eighty-eighth Congress
AUTHORIZATION
PUBLIC LAW 91-589, 84 STAT. 1585, 2 U.S.C. Sec. 168
JOINT RESOLUTION Authorizing the preparation and printing of a revised edition of the Constitution of the United States of America-- Analysis and Interpretation, of decennial revised editions thereof, and of biennial cumulative supplements to such revised editions.
Whereas the Constitution of the United States of America -- Analysis and Interpretation, published in 1964 as Senate Document Numbered 39, Eighty-eighth Congress, serves a very useful purpose by supplying essential information, not only to the Members of Congress but also to the public at large;
Whereas such document contains annotations of cases decided by the Supreme Court of the United States to June 22, 1964;
Whereas many cases bearing significantly upon the analysis and interpretation of the Constitution have been decided by the Supreme Court since June 22, 1964;
Whereas the Congress, in recognition of the usefulness of this type of document, has in the last half century since 1913, ordered the preparation and printing of revised editions of such a document on six occasions at intervals of from ten to fourteen years; and
Whereas the continuing usefulness and importance of such a document will be greatly enhanced by revision at shorter intervals on a regular schedule and thus made more readily available to Members and Committees by means of pocket-part supplements: Now, therefore, be it Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Librarian of
Congress shall have prepared--
(1) a hardbound revised edition of the Constitution of the United States of America--Analysis and Interpretation, published as Senate Document Numbered 39, Eighty-eighth Congress (referred to hereinafter as the ``Constitution Annotated''), which shall contain annotations of decisions of the Supreme Court of the United States through the end of the October 1971 term of the Supreme Court, construing provisions of the Constitution;
(2) upon the completion of each of the October 1973, October 1975, October 1977, and October 1979 terms of the Supreme Court, a cumulative pocket-part supplement to the hardbound revised edition of the Constitution Annotated prepared pursuant to clause (1), which shall contain cumulative annotations of all such decisions rendered by the Supreme Court after the end of the October 1971 term;
(3) upon the completion of the October 1981 term of the Supreme Court, and upon the completion of each tenth October term of the Supreme Court thereafter, a hardbound decennial revised edition of the Constitution Annotated, which shall contain annotations of all decisions theretofore rendered by the Supreme Court construing provisions of the Constitution; and
(4) upon the completion of the October 1983 term of the Supreme Court, and upon the completion of each subsequent October term of the Supreme Court beginning in an odd-numbered year (the final digit of which is not a 1), a cumulative pocket-part supplement to the most recent hardbound decennial revised edition of the Constitution Annotated, which shall contain cumulative annotations of all such decisions rendered by the Supreme Court which were not included in that hardbound decennial revised edition of the Constitution Annotated.
Sec. 2. All hardbound revised editions and all cumulative pocket-part supplements shall be printed as Senate documents.
Sec. 3. There shall be printed four thousand eight hundred and seventy additional copies of the hardbound revised editions prepared pursuant to clause (1) of the first section and of all cumulative pocket-part supplements thereto, of which two thousands six hundred and thirty-four copies shall be for the use of the House of Representatives, one thousand two hundred and thirty-six copies shall be for the use of the Senate, and one thousand copies shall be for the use of the Joint Committee on Printing. All Members of the Congress, Vice Presidents of the United States, and Delegates and Resident Commissioners, newly elected subsequent to the issuance of the hardbound revised edition prepared pursuant to such clause and prior to the first hardbound decennial revised edition, who did not receive a copy of the edition prepared pursuant to such clause, shall, upon timely request, receive one copy of such edition and the then current cumulative pocket-part supplement and any further supplements thereto. All Members of the Congress, Vice Presidents of the United States, and Delegates and Resident Commissioners, no longer serving after the issuance of the hardbound revised edition prepared pursuant to such clause and who received such edition, may receive one copy of each cumulative pocket-part supplement thereto upon timely request.
Sec. 4. Additional copies of each hardbound decennial revised edition and of the cumulative pocket-part supplements thereto shall be printed and distributed in accordance with the provisions of any concurrent resolution hereafter adopted with respect thereto.
Sec. 5. There are authorized to be appropriated such sums, to remain available until expended, as may be necessary to carry out the provisions of this joint resolution.
Approved December 24, 1970.
INTRODUCTION TO THE 1992 EDITION
In the 1952 edition, Professor Corwin wrote an introduction that broadly explored the trends of constitutional adjudication then evident while other trends had become dormant. In some respects, the law of federalism, the withdrawal of judicial supervision of economic regulation, the continuing expansion of presidential power and the consequent overshadowing of Congress, among others, he has been confirmed in his evaluations. But, in other respects, entire new vistas of fundamental law of which he was largely unaware have opened up. Brown v. Board of Education was but two Terms of the Court away, and the revolution in race relations, by all three branches, could have been only dimly perceived. The Supreme Court's application of many provisions of the Bill of Rights to the States, then nascent, and its expansion of the meaning of those rights would prove revolutionary. The apportionment-districting decisions were still blanketed in time; abortion as a constitutionally protected liberty was unheralded. And with respect to the range of decisions which he did not anticipate, we have seen a Supreme Court move from the activism of the 1960s and 1970s to a posture of more judicial restraint, although in many areas, speech and press notably, little change has occurred as a result of a shifting of the Justices of the High Court.
This brief survey will primarily be a suggestive review of the Court's treatment of the doctrines of constitutional law. In previous editions, we have noted the rise of the equal protection clause as a central concept of constitutional jurisprudence in the period 1953-1982. That rise has somewhat abated in the period covered by this volume, but the clause remains one of the predominant sources of constitutional constraints upon the Federal Government and the States. The due process clauses of the Fifth and Fourteenth Amendments similarly have experienced an expansion, both in terms of procedural protections for civil and criminal litigants and in terms of the application of substantive due process to personal liberties and in some economic cases.
I
National federalism as a doctrine was proved to be far more pervasive and encompassing than it was possible to notice in 1953. In some respects, of course, later cases only confirmed what those decisions already on the books told. Foremost example of this confirmation has been the enlargement of national powers, of congressional powers, under the commerce clause. The expansive reading of that clause's authorization to Congress to reach many local incidents of business and production already apparent by 1953 was scarcely enlarged by those decisions of the period through the 1960s - 1980s, under which Congress asserted jurisdiction on the basis of an antecedent or subsequent movement over a state boundary of some element touching upon the transaction or solely upon the premise that certain transactions by their nature alone or as part of a class sufficiently affect interstate commerce as to warrant national regulation. Civil rights laws touching public accommodations and housing, environmental laws affecting land use regulation, criminal law coverage, and employment regulations touching health and safety as well as benefits are only the leading examples of enhanced federal activity. Conversely, state power to regulate commerce has been further restricted through the application of a doctrine of preemption which is increasingly aimed at one national standard, although under Chief Justice Burger and Chief Justice Rehnquist, the Court has not so readily as before seemed to favor preemption, especially in the area of labor-management relations. Only with respect to the State's own employees did the Court inhibit federal regulation and then with a decision which failed to secure a stable place in the doctrine of federalism, being overruled in less than a decade. Some immunity for States from federal laws aimed directly at them was implied from the Constitution, but its potency remains to be seen.
Noteworthy has been a rather strict application of the negative aspect of the commerce clause to restrain state actions that either discriminate against or too much inhibit interstate commerce.
Of much the same import has been the application of the Bill of Rights to the States through the due process clause of the Fourteenth Amendment, a matter dealt with in greater detail below. The Court has again and again held that when a provision is applied, it means the same whether a State or the Federal Government is the challenged party, although a small but consistent minority has argued otherwise. Some flexibility, however, has been afforded the States by the judicial loosening of the standards of some of these provisions, as in the characteristics of the jury trial requirement. Adoption of the exclusionary rule in Fourth Amendment and other cases also looked to a national standard, but the more recent disparagement of the rule by majorities of the Court has relaxed its application to both States and Nation.
The Court of the last ten years has reinvigorated, to be sure, certain aspects of the old federalism. The Eleventh Amendment has been infused with new potency. The equity powers of the federal courts to interfere in on-going state court proceedings and to review state court criminal convictions under habeas corpus have been curtailed. A doctrine of comity and rules of prudential restraint in the exercise of federal judicial power have been invoked.
The overriding view is that the present Court where it has discretion will apply federalism concerns to limit federal powers. But the critical fact, the scope of congressional power, remains: the limits on congressional power under the commerce clause and other Article I powers, as well as under the power to enforce the Reconstruction Amendments, remain those of self-restraint.
II
For much of this period, aggregation of national power in the presidency continued unabated and not much resisted by congressional majorities, which, indeed, continued to delegate power to the Executive Branch and to the independent agencies at least to the same degree if not to a greater extent than before. The President himself, most notably in the field of foreign affairs and national defense, assumed the existence of a substantial reservoir of inherent power to effectuate his policies as well. Only in the wake of the Watergate affair did Congress move to assert itself and to attempt to claim some form of partnership with the President, most notably with respect to war powers and the declaration of national emergencies, but including as well the regulation of some domestic presidential concerns, as in the impoundment controversy.
Perhaps coincidentally, the Supreme Court effected a strong judicial interest in the adjudication of separation-of-powers controversies. Previously, even as it utilized separation of language, the Court little involved itself in actual controversies, save for the Myers-Humphrey litigations over the President's power to remove executive branch officials. But that restraint evaporated in 1976.
There were several Court decisions in this area, although in evincing a renewed interest in separation of powers, as in Buckley v. Valeo, and subsequent cases, the Court appeared to cast the judicial perspective favorably upon presidential prerogative and in a few cases statutory construction was utilized to preserve unto the President certain discretion that was in dispute. Only very recently has the Court evolved an arguably consistent standard in this area, a two-pronged standard of aggrandizement and impairment, but the results still are cast in terms of executive preeminence.
The larger conflict has been political, and the Court resisted many efforts to involve it in litigation over the use of troops abroad in Vietnam, coming close as well to declaring, in a treaty termination context, the resurgence of the political question doctrine to all such executive-congressional disputes. Nevertheless, there does appear to have survived cessation of the Vietnam conflict a significant congressional interest in achieving a new and different balance between the political branches, an interest the assertion of which may well involve the judiciary to a much greater extent, and, in any event, one which the congressional branch is not without weapons to effectuate.
III
The demise of substantive due process, apparent in the 1950s, is a fact today insofar as the validity of economic legislation is concerned, although in a few isolated cases, involving the obligation of contracts, and perhaps expanding in the regulatory takings area, the Court has demonstrated that some life is left in the old doctrines. Yet, the word ``liberty'' in the due process clauses of the Fifth and Fourteenth Amendments was seized upon by the Court in harnessing substantive due process to the protection of certain rights having to do with personal and familial privacy, most controversially in the abortion cases.
Whereas much of the Bill of Rights is directed to prescribing how government may permissibly deprive one of life, liberty, or property--by judgment of a jury of one's peers or with evidence seized only through reasonable searches, for example--the First Amendment is in terms absolute and while its application has never presumed to be so absolute the effect has often been indistinguishable. Thus, the trend over the years has been to withdraw more and more speech and ``speech- plus'' from the regulatory and prohibitive hand of government and to free not only speech directed to political ends but that totally unrelated to any political purpose.
Thus, the constitutionalization of the law of defamation with the narrowing possibilities of recovery for libelous and slanderous criticism of public officials, political candidates, and public figures epitomizes the trend. Government's right to proscribe the advocacy of violence or unlawful activity has become more restricted. Obscenity abstractly remains outside the protective confines of the First Amendment, but the Court's changing definitional approach to what may be constitutionally denominated pornography has closely confined most governmental action taken against the verbal and pictorial representation of matters dealing with sex. The encompassing of the right to spend for political purposes and to associate together for political activity has meant that much governmental regulation of campaign finance and of limitations upon the political activities of citizens and public employees had become suspect if not impermissible. Commercial speech, long the outcast of the First Amendment, now enjoys a protected if subordinate place in free speech jurisprudence. Freedom to picket, to broadcast leaflets, to engage in physical activity representative of one's political, social, economic, or other views enjoy wide though not unlimited protection.
It may be that a differently constituted Court will view matters differently, will narrow the scope of the Amendment's protection and enlarge the permissible range of governmental action. But, in contrast to other areas in which the present Court has varied from its predecessor, the record with respect to the First Amendment has been one of substantial though uneven expansion of precedent.
IV
Unremarked by scholars of some forty years ago was the place of the equal protection clause in constitutional jurisprudence--simply because at that time Holmes' pithy characterization of it as a ``last resort'' argument was generally true. Today, equal protection litigation occupies a position of almost predominant character in each Term's output. Then, the rational basis standard of review of different treatments of individuals, businesses, or subjects little concerned the Justices. The clause blossomed in the Court's confrontation after Brown v. Board of Education with state and local laws and ordinances drawn on the basis of race and this aspect of the doctrinal use of the clause is still very evident on the Court's docket, though in ever new and interesting form.
Of worthy attention has been the application of the doctrine, now in a three-tier or multi-tier set of standards of review, to legislation and other governmental action classifying on the basis of sex, illegitimacy, and alienage. Of equal importance was the elaboration in adjudication under the clause of a concept of ``fundamental'' rights as to which a government must if it acts so as to restrict the exercise of one of these rights show not merely a reasonable basis for its actions but a justification based upon necessity, compelling necessity. The right to vote, nowhere expressly guaranteed in the Constitution (but protected against abridgment on certain grounds in the Fifteenth, Nineteenth, and Twenty-sixth Amendments) received under the clause a special dispensation that required the invalidation of all but the most simple qualifications, most barriers to ballot access by individuals and parties, and the practice of apportionment of state legislatures on any basis other than population. Wealth distinctions in the criminal process were viewed with hostility and generally invalidated.
Again, a reconstituted court made some tentative rearrangements with respect to these doctrinal developments. The suspicion of wealth classifications was largely though not entirely limited to the criminal process. Governmental discretion in the political process was enlarged a small degree. But the record generally is one of consolidation and maintenance of the doctrines, a refusal to go forward much but also a disinclination to retreat much. Only very recently has the Court, in decisional law largely cast in remedial terms, begun to dismantle some of the structure of equal protection constraints on institutions, such as schools, prisons, state hospitals, and the like. Now, we see the beginnings of a sea change in the Court's perspective on legislative and executive remedial action, affecting affirmative action and race conscious steps in the electoral process, with the equal protection clause being used to cabin political discretion.
V
Finally, criminal law and criminal procedure during the 1960s and 1970s has been doctrinally unstable. The story of the 1960s was largely one of the imposition of constitutional constraint upon federal and state criminal justice systems. Application of the Bill of Rights to the States was but one aspect of this story. At the same time, the Court constructed new teeth for the guarantees. For example, the privilege against self-incrimination was given new and effective meaning by requiring that at the police interrogation stage it be observed and furthermore that criminal suspects be informed of their rights under it. It was also expanded, as was the Sixth Amendment guarantee of counsel, by requiring the furnishing of counsel or at least the opportunity to consult counsel at ``critical'' stages of the criminal process-- interrogation, preliminary hearing, and the like, rather than only at and proximate to trial. An expanded exclusionary rule was applied to keep out of evidence material obtained in violation of the suspect's search and seizure, self-incrimination, and other rights.
During the last two decades, the Court has drawn the line differently here. The exclusionary rule has been cabined and redefined in several limiting ways. Search and seizure doctrine has been revised to enlarge police powers. The self-incrimination and counsel doctrines have been eroded in part although in no respect has the Court returned to the constitutional jurisprudence prevailing before the 1960s.
Moreover, substantive as well as procedural guarantees were developed. The law of capital punishment has been a course of meandering development, with the present Court almost doing away with it and then approving its revival by the States.
Undergirding the 1960s procedural and substantive development was a series of expansion of the habeas corpus powers of the federal courts, with the sweeping away of many jurisdictional restrictions previously imposed upon the exercise of review of state criminal convictions. Concomitantly with the narrowing of the precedents of the 1950s and 1960s Court came a retraction of federal habeas powers since the 1970s.
VI
The last four decades were among the most significant in the Court's history. They were as well the scene of some of the most sustained efforts to change the Court or its decisions or both with respect to a substantial number of issues. On only a few past occasions was the Court so centrally a subject of political debate and controversy in national life or an object of contention in presidential elections. One can doubt that the public any longer perceives the Court as an institution above political dispute, any longer believes that the answers to difficult issues in litigation before the Justices may be found solely in the text of the document entrusted to their keeping. But one cannot doubt either that the Court still enjoys the respect and reverence of the bar and the public generally, that its decisions generally are accorded uncoerced acquiescence, and that its pronouncements are accepted as authoritative, binding constructions of the constitutional instrument. Indeed, it can be argued that the disappearance of the myth of the absence of judicial discretion and choice strengthens the Court as an institution to the degree that it explains and justifies the exercise of discretion and choice in those areas of controversy in which the Constitution does not speak clearly or in which different sections lead to different answers. The public attitude thus established is then better enabled to understand division within the Court and within the legal profession generally, and all sides are therefore seen to be entitled to the respect accorded the good faith search for answers. As the Court's workload continues to increase, a greater and greater proportion of its cases taken are ``hard'' cases and while hard cases need not make bad law they do in fact lead to division among the Justices and public controversy. Increased sophistication, then, about the Court's role and its methods can only redound to its benefit.