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Divisions of Opinion Among Justices of the U. S. Supreme Court, 1939–1941

Published online by Cambridge University Press:  02 September 2013

C. Herman Pritchett
C. Herman Pritchett
Affiliation:
University of Chicago
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Extract

“We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.

Type
American Government and Politics
Information
American Political Science Review , Volume 35 , Issue 5 , October 1941 , pp. 890 - 898
Copyright
Copyright © American Political Science Association 1941

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References

1 This figure and the quotations following are taken from Wormuth, Francis D., “The Dilemma of Jurisprudence,” in this Review, Vol. 35 (1941), p. 44.Google Scholar

2 It should be noted that some 10 or 11 of these dissents were in “companion” cases, i.e., cases involving an issue identical with that decided in a preceding case, and requiring little or no new discussion. For statistical treatment, these cases might have been eliminated, to prevent double weight being given to divisions of opinion in a single situation. However, they have not been excluded, for various reasons, and it is not believed that any distortion has resulted from their inclusion. In two cases (61 S.C. 845, 861), there are dissents by two groups of justices involving separate aspects of the decision; these have been treated as two distinct dissents, and thus there are 91 dissents in the 89 cases.

3 The cases are Neuberger v. Commissioner of Internal Revenue, 61 S.C. 97 (1940), and Union Pacific Rr. Co. v. U. S., 61 S. C. 1064 (1941).

4 The Court's newest justice, former Attorney-General Jackson, has recently commented feelingly on the “anti-government” attitude (not simply anti-New Deal) of the Court's conservative majority during the pre-deluge period of 1935–1936. See Jackson, Robert H., The Struggle for Judicial Supremacy (New York, 1941), p. 170.Google Scholar

5 The citations are: 308 U.S. 147, 313, 331, 338, 473, 488; 309 U.S. 33, 70, 83, 106, 149, 176, 310, 331, 350, 370, 430, 517, 527, 530, 551; 310 U.S. 53, 69, 80, 88, 106, 113, 141, 150, 371, 381, 434, 534, 554, 573, 586.

6 Schneider v. State, 308 U.S. 147 (1939); Nardone v. U.S., 308 U.S. 338 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Carlson v. California, 310 U.S. 106 (1940).

7 283 U.S. 697 (1931).

8 Minersville School District v. Gobitis, 310 U.S. 586 (1940).

9 Helvering v. Fuller, 310 U.S. 69 (1940).

10 The citations are: 308 U.S. 165, 331; 309 U.S. 190, 280, 310, 350, 370; 310 U.S. 1, 53, 113, 141, 150, 371, 381, 434, 469, 534, 573.

11 National Licorice Co. v. N.L.R.B., 309 U.S. 350 (1940); Paramino Co. v. Marshall, 309 U.S. 370 (1940); Thornhill v. Alabama, supra; Carlson v. California, supra; Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940).

12 McGoldrick v. Berwind-White Co., 309 U.S. 33 (1940), and two companion cases; Ford Motor Co. v. Beauchamp, 308 U.S. 331 (1939); Madden v. Kentucky, 309 U.S. 83 (1940); McCarroll v. Dixie Greyhound Lines, 309 U.S. 176 (1940); Osborn v. Ozlin, 310 U.S. 53 (1940).

13 McCarroll v. Dixie Greyhound Lines, supra; Perkins v. Lukens Steel Co., 310 U.S. 113 (1940); U.S. v. Bush & Co., 310 U.S. 371 (1940); Railroad Commission v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940).

14 U.S. v. San Francisco, 310 U.S. 16 (1940).

15 Union Joint Stock Land Bank v. Byerly, 310 U.S. 1 (1940).

16 One further illustration of this point may be supplied. During the 1940 term, the Supreme Court twice had to consider problems raised by the establishment of a new terminal produce market at Kansas City, Kansas, which was promoted by the Union Pacific Railroad and the city in an evident effort to attract trade away from the existing terminal at Kansas City, Missouri. The legal questions raised in the two cases were quite different. In the first (L. Singer & Sons v. Union Pacific R. Co., 61 S.C. 254 (1940)), the question was whether Kansas City, Mo., could as a “party in interest” under the Transportation Act of 1920, seek to enjoin the construction of an extension by the railroad to serve this competing market. In this case, the city lost. In the second case (Union Pacific R. Co. v. U.S., 61 S.C. 1064 (1941), the question was whether the Elkins Act had been violated by the action of Kansas City, Kan., which, in coöperation with the railroad, had offered concessions to induce leasing of space in the new terminal. Here the court held that the act had been violated. Seven members of the court participated in both decisions, and it is interesting to note that three of the justices (Roberts, Douglas, and Black) took a position on the legal points involved which favored the new terminal in both cases, while three other justices (Stone, Hughes, and Reed) opposed it in both cases. Justice Frankfurter alone switched sides between cases, and was with the majority in both. This incident suggests that the judges decided the legal questions in terms of their attitude towards the terminal and the justifiability of this kind of competition.

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