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In addressing the court in due-process cases one should not commence with the usual salutation “May it please the Court.” Instead, one should say “My Lords.” Backed by and charged with the enforcement of the due-process clause of the fifth and fourteenth amendments, the Supreme Court of the United States is the American substitute for the British house of lords. It constitutes the real and only conservative second chamber of the federal government. It is a second conservative chamber for each of the state governments.The time has come when the political scientists of the country should recognize, in the decisions of the United States Supreme Court under the due-process clause, the functioning of a second chamber, organized to defeat the popular will as expressed in legislation when that will appears to endanger what the court may regard as a fundamental requirement of the social structure itself.Like all conservative second chambers, the Supreme Court and the due-process clause are in a hopeless dilemma. If the popular will were frustrated as often as the dissenting opinions of Mr. Justice McReynolds indicate that it should be, the second chamber function of the court would be assailed by the recall of judicial decisions. If the court bowed to the popular will as often as the dissenting opinions of Mr. Justice Holmes indicate that it should, the second chamber function of the court would cease to be exercised.

Justice is not administered by an executive head plamning how a large number of employees shall do clerical work or tend machines. Its ultimate source is in the operation of the mind of the judge upon certain facts presented to him in a judicial investigation. The power of the state to preserve order and settle the rights of parties is subject to be invoked in one way or another, according as the judge's mind reacts and operates. Clearly, therefore, the way in which the minds are selected for this important public duty and the way they are retired are of the first importance to the due administration of justice. It may be that in some frontier or sparsely settled rural districts where extra-legal government does not exist, judges are in a degree really elected by the people. It may be that in such communities the electorate does actually pick out that one among the lawyers whom it wishes to act as judge. There may be other communities which are well satisfied with the results obtained by special judicial elections at which the candidates are nominated by petition only and where the ballot is in form non-partisan. An analysis of conditions in such communities will usually show that extra-legal government by politocrats is very weak or non-existent and that the power of selecting and retiring judges really resides in the lawyers subject only to the approval of the electorate.