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Background for Dissensions S p u * * * c o m * * B lG U X F N tM S t w w \ - No n — — ---- 1-------- -------------- --------- ------- o r respect to the Supreme C o u rj/ First, as to pragmatic justices, /nc UNE-tY-LINE COPYHOLDER Your offico got choked up with a deluge of copying of tax time? Error-No help* your — — -| —j- t y p i s t w h i s k through lists, re-ports ond forms in record timo, elimi­nates errors, per-mits your offico to hondlo more work accurately, faster ond ot lower « T A SIZE TO PIT AIL COPY WIDTHS UP TO 36 INCHES COMPANY INC IOC Hit ADDRESS: SO MT. HOPE AVENUE / Background fo r Dissensions (Continued from paac 1095) moral, or unmoral, or immoral at­mosphere of the/aay. And here was fertile soil for the flowering—if flower be the word— of American pragmatism. The test of truth was to be found in conse­quences, in workability. The accep­tance of this point of view in the light of skepticism meant three things with Fi isence of any common standard for'sehoosing and evaluating facts. Secon^gn absence of any/greement, so far as sifreh agreement might flow from processes'll formal logic, to the extent that suclyiogjc was to be dis­regarded or di^cardcdNHiird, uncer­tainty antl/unpredictability in the law. Tht/pragmatists would obonost to disagree as to whethchsa inciple or rule had worker past and .thus proved its /"tru th ” by its workability. As to the future, one man’s idea as to whether the rule would "work” or the principle prove “true" by its fruits, was likely to differ from an­other’s. Both would be gazing into a crystal and trying to predict the future. Pragmatism meant prophecy. But that, you say, is no more than the legislator does. Maybe so, but here we come to the deepest root of the matter. And that is that nei­ther skeptical relativism nor prag-lnatism. givcs any common answer to the Question: What is it all about? Agreement that the test of truth Jr efficiency, "workableness’’, leaves wholly unanswered the primal ques­tion: Work toward what? Accomplish what? Produce what end? If the pragmatists do not agree upon ends, then they will not agree upon means. If the pragmatists happen to be justices of the Supreme Court of the United States or of any other court, they will not agree upon the prin­ciples and rules they believe should govern society. To expect any large measure of agreement among such is to expect the impossible.'- [C K U ’ Y R IG H T 1948 b y B e n W . Pal- M t K I 12. The skopflbql relativism or pragmatism of Holmes is too wefisjtnown to need elucidation. For significant quotatifen^by Frankfurter of San­tayana, see 29 Horv. L. '5iRqv. 683, 699 (1916). P. A. Sorokin, The Crisis of OfrK^ge (New York, 1946), pages 96, 116. See Walters&fcvKennedy in M y Philosophy of Low, and in 9 M arq . csJov. 63 (1925); 5 Ford L. Rev. 272 (1936); 7 Id . 203X1938); 8 Id. 45 (1939); 29 Georgetown L. Jour. 139 (1940); Paul L. Gregg, S. J., 31 Id . 262 (1943); Francis E. Lucey, 30 Id . 493 (1942); 9 Ford L. Rev. 362 (1940). On realists, see references in E. W. Garlan, legal Pool ism a n d Jutlico (1940), page 135. 4 ? ? Public Utility Property (Continued front page 1099) in Smyth v. Ames; so, there was no contest on that subject. But Justices Black, Douglas and Murphy raised ihe issue in a concurring opinion that attacked not only the Smyth v. Ames rule, but also the doctrine of judicial review of the reasonableness of rates and the eminent domain rule. This case represented the whirl­wind that heralded the approaching storm that broke with all its fury in 1944. Space will not permit quotations from the dissenting opinions and s[>ecia! concurrences cited in this article. Some of them are very in­teresting, not alone for their merit, but also for their vigor, virility and forthrightness. At the date of the decision in the Natural Gas Pipeline Company case, it is fair to assert that the following rules and prescriptions had been laid down by the Court since 1890, affect­ing public utility law and procedure: 1. Constitutional right of judicial re­view of reasonableness of rates. 2. Applicability of eminent domain rule as to just compensation, in form of rates, to which a public utility is entitled. 3. Valuation requirements as pre- I scribed by the decision in Smyth I v. Ames. While the foregoing rules were many times in effect partially ignored, evaded or equivocally treated by the Court, it does not appear of record, up to 1942, that the Court ever forth­rightly repudiated any of the princi­ples laid down in those rules. That much of these judicially erected standards had begun to sick­en and, in effect, die in spots, the decisions of the Court clearly re­vealed. It was a case of the shadow remaining after considerably of the substance had been swept away. Many regulatory bodies had paid only formal lip service to these standards; and the Court had per­mitted them “to get away with it”, albeit such decisions were usually by a divided Court. We have seen that a strong minority of the Court was unalterably opposed to these stand­ards and vigorously dissented when they were strictly enforced. The situation was one of irrepressible and constant conflict and disagreement. I his was the state of the judicial atmosphere surrounding the Supreme Court at the beginning of its 1943 term. The storm that had been brewing over the years came to fruition in Federal Power Commission v. Hope Natural Gas Company, 820 U.S. 591, 1 1 5 4 American Bar Association Journal