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Jackson's Judicial Philosophy: An Exploration in Value Analysis*

Published online by Cambridge University Press:  02 September 2013

Glendon Schubert
Glendon Schubert
Affiliation:
Michigan State University
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Extract

Robert H. Jackson died more than a decade ago, and his departure from the Supreme Court marked the end of an era in American judicial politics, since he left behind as a minority those remaining of the colleagues who had joined with him to compose the so-called Roosevelt Court. He was still very much alive when I interviewed him shortly after the Steel Seizure decision in 1952, and subsequently when the initial stages of the present research were designed and carried out. His unanticipated and fatal heart attack had two incidental consequences that are relevant here: it fixed an unavoidable natural closure for the data—his activities-that I was studying, and at the same time imposed an insurmountable foreclosure upon one of my research ambitions. For the best way to validate generalizations about a man's attitudinal predispositions and belief systems is to check them as predictions against his future behavior; social scientists understandably repose lesser confidence in findings about hypotheses that can be validated only statistically, and then only by retrospective testing. Perhaps it was an error, therefore, not to have switched from Jackson to some other justice as a subject; but even one who chose a younger justice (such as Arthur Goldberg) might have guessed wrongly about his tenure, and Jackson's career did offer several unusual advantages—for reasons that will be explained shortly—which it seemed important to exploit.

Type
Research Article
Information
American Political Science Review , Volume 59 , Issue 4 , December 1965 , pp. 940 - 963
Copyright
Copyright © American Political Science Association 1965

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References

1 Pritchett, C. Herman, The Roosevelt Court: A Study in Judicial Politics and Values, 1987–1947 (New York, 1948)Google Scholar.

2 E.g., Barnett, Vincent L., “Mr. Justice Jackson and the Supreme Court,” Western Political Quarterly, Vol. 1 (1948), pp. 233–242CrossRefGoogle Scholar; Fairman, Charles, “Robert H. Jackson: Associate Justice of the Supreme Court,” Columbia Law Review, Vol. 55 (1955), pp. 445–487CrossRefGoogle Scholar; Frankfurter, Felix, “Mr. Justice Jackson,” Harvard Law Review, Vol. 68 (1955), pp. 937–939Google Scholar; Gerhart, Eugene C., “A Decade of Mr. Justice Jackson,” New York University Law Review, Vol. 28 (1953), pp. 927–974Google Scholar, and America's Advocate: Robert H. Jackson (Indianapolis, Ind., 1958)Google Scholar; Jaffe, Louis L., “Mr. Justice Jackson,” Harvard Law Review, Vol. 68 (1955), pp. 940–948CrossRefGoogle Scholar; Nielson, James A., “Robert H. Jackson: the Middle Ground,” Louisiana Law Review, Vol. 6 (1945), pp. 381–405Google Scholar; Steamer, Robert J., The Constitutional Doctrines of Mr. Justice Robert H. Jackson (Cornell University, Ph.D. Dissertation in Political Science, 1954Google Scholar; University Microfilms No. 9802); Symposium, “Justice Robert H. Jackson,” Stanford Law Review, Vol. 8 (1955), pp. 1–59Google Scholar; and Weidner, Paul A., “Justice Jackson and the Judicial Function,” Michigan Law Review, Vol. 53 (1955), pp. 567–594CrossRefGoogle Scholar.

3 Weidner, op. cit., pp. 593–594.

4 Barnett, op. cit., p. 241.

5 Pritchett, op. cit., p. 261.

6 Pritchett, C. Herman, Civil Liberties and the Vinson Court (Chicago, University of Chicago Press, 1954), pp. 18, 228–229Google Scholar.

7 Jackson was on leave of absence from the Court throughout the 1945 Term, acting in the role of United States Chief Counsel in the Nuremberg war crimes trials. See Harris, Whitney R., Tyranny on Trial (Dallas, Tex., Southern Methodist University, 1954)Google Scholar. Only six months before his death, in his introduction to this book, Jackson wrote that “the hard months at Nuremberg were well spent in the most important, en-during and constructive work of my life.”

8 For a list of Jackson's opinions, which contains some omissions and duplications but which corresponds closely to the independently compiled list used in the present study, see the Stanford Law Review, Vol. 8 (1955), pp. 60–71Google Scholar.

9 Jackson wrote both the majority opinion and a separate concurring opinion in Wheeling Steel Corp. v. Glander, 337 U. S. 562, 574 (1949).

10 For other recent discussions and examples of content analysis, see North, Robert C. et al. , Content Analysis (Evanston, Ill., Northwestern University Press, 1963)Google Scholar; and Fred Kort, “Content Analysis of Judicial Opinions and Rules of Law,” and Schubert, Glendon, “Civilian Control and Stare Decisis in the Warren Court,” both in Schubert, G., ed., Judicial Decision-Making (New York, 1963), pp. 133–197, and 55–77Google Scholar.

11 E.g., McClosky, Herbert, “Conservatism and Personality,” this Review, Vol. 52 (1958), pp. 27–45Google Scholar; Lane, Robert E., Political Ideology (New York, 1962)Google Scholar; Schubert, Glendon, The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946–1963 (Evanston, Ill., 1965)Google Scholar.

12 “Variable” denotes the content category; the name (or symbol, or short title) of the variable in apposition with a valence symbol (+ or —) or phrase (”positive value” or “negative value”) denotes the affective meaning of a particular stimulus or response set.

13 The Judicial Mind, op. cit. fn. 11, supra, esp. ch. 5, “Liberalism, Political and Economic.”

14 Sign reversals were necessary for the economic variables, in order to maintain continuity with other recently published research in judicial attitudes toward economic policy. See idem; and Spaeth, Harold J., “An Analysis of Judicial Attitudes in the Labor Relations Decisions of the Warren Court,” Journal of Politics, Vol. 25 (1963), pp. 290–311CrossRefGoogle Scholar, and “Warren Court Attitudes toward Business: The ‘B’ Scale,” in Judicial Decision-Making, op. cit. in. 10, supra, pp. 79–108.

15 McQuitty, Louis L., “Elementary Linkage Analysis for Isolating Orthogonal and Oblique Types and Typal Relevancies,” Educational and Psychological Measurement, Vol. 17 (1957), pp. 207–229CrossRefGoogle Scholar; McQuitty, “Hierarchical Syndrome Analysis,” ibid., Vol. 20 (1960), pp. 293–304; and McQuitty, “Rank-Order Typal Analysis,” ibid., Vol. 23 (1963), pp. 55–61.

16 Harman, Harry H., Modern Factor Analysis (Chicago, University of Chicago Press, 1960), pp. 154–191, 301–308Google Scholar.

17 Cardozo, Benjamin N., “Law and Literature,” Yale Review, Vol. 14 (1925), p. 715Google Scholar.

18 In the relatively rare occasion (for the Court) when only six or seven justices participate in a decision.

19 Jackson, Robert H., The Struggle for Judicial Supremacy (New York, 1941), pp. 184–188Google Scholar.

20 “Robert H. Jackson,” Fortune, Vol. 26 (03, 1938), pp. 78–80Google Scholar; Childs, Marquis W., “The Man Who Has Always Been a New Dealer,” Forum, Vol. 103 (03, 1940), pp. 148–154Google Scholar; Corey, Herbert, “A Man with a Flexible Future,” Nation's Business, Vol. 25 (09, 1937), pp. 75–76, 78, 119Google Scholar; McCune, Wesley, The Nine Young Men (New York, 1947), pp. 180–181, 186Google Scholar; Gerhart, America's Advocate, op. cit. fn. 2, supra, pp. 229–231.

21 The New York Times, June 11, 1946, p. 2, col. 3–6Google Scholar; United States News, Vol. 20 (06 21, 1946), pp. 81–82Google Scholar.

22 Gerhart, America's Advocate, op. cit. fn. 2, supra, pp. 258–265; Schlesinger, Arthur Jr., “The Supreme Court: 1947,” Fortune, Vol. 35 (01, 1947), pp. 73–79, 201–212Google Scholar. Gerhart's pro-Jackson account should be compared with Frank, John P., Mr. Justice Black: The Man and His Opinions (New York, 1949), pp. 124–131Google Scholar, which offers a countervailing bias.

23 Jackson, Robert H., The Supreme Court in the American System of Government (Cambridge, Mass., Harvard University Press, 1955), p. 57Google Scholar.

24 Ibid., p. 19.

25 Berelson, Bernard R., Lazarsfeld, Paul F., and McPhee, William N., Voting (Chicago, University of Chicago Press, 1954), pp. 1, 94, 100Google Scholar; McClosky, op. cit.

26 Hyman, Herbert, Political Socialization (Glencoe, 1959), p. 74Google Scholar; Maccoby, Eleanor E. et al. , “Youth and Political Change,” Public Opinion Quarterly, Vol. 18 (1954–1955), pp. 23–29CrossRefGoogle Scholar.

27 Gerhart, America's Advocate, op. cit. in. 2, supra, pp. 26–28.

28 Op. cit. in. 19, supra, passim.

29 Ibid., p. v.

30 The Judicial Mind, op. cit. fn. 11, supra, pp. 103–105, 129–131.

31 “Policy without Law: An Extension of the Certiorari Game,” Stanford Law Review, Vol. 14 (1962), pp. 284–327CrossRefGoogle Scholar.

32 The Judicial Mind, op. cit. fn. 11, supra, p. 226.

33 In the discussion that follows, the first of each pair of frequencies will be that for the positive value and the second will be for the negative; for the content variables, the frequency for ambivalent scores appears in parentheses between the marginals.

34 This and the subsequent findings in the text at this point are based on the chi square one-sample test (two-tailed).

35 The Judicial Mind, op. cit. fn. 11, supra, p. 148.

36 Jewell Ridge Coal Co. v. Local No. 6167, United Mine Workers of America, 325 U. S. 897–898 (June 18, 1945); Gerhart, America's Advocate, op. cit. fn. 2, supra, pp. 247–253.

37 Cf. Schubert, Glendon, The Public Interest (New York, 1960)Google Scholar.

38 See Borgatta, Edgar F., “On Analyzing Correlation Matrices: Some New Emphases,” Public Opinion Quarterly, Vol. 22 (1958–1959), pp. 516–528CrossRefGoogle Scholar.

39 See fn. 15, supra.

40 Idem.

41 Cf. The Judicial Mind, op. cit. fn. 11, supra, p. 201.

42 Op. cit. fn. 19, supra.

43 Concurring in Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579, 647 (1952).

44 Op. cit. fn. 23, supra.

45 The Judicial Mind, op. cit. fn. 11, supra, ch. 5.

46 Ibid., pp. 146–157.

47 Ibid., pp. 104–107, 130–133.

48 Ibid., pp. 125, 145.

49 The data for voting in decisions with opinion are reported in Table V; for the marginal distributions for all Jackson's votes in decisions on the merits of the political and economic scale variables, see fn. 56 and 57. A comparison of these two sources shows that for those (non-sample) cases in which he wrote no opinion, the voting marginals (before and after the 1945 Term) are: for C, 11–36 and 37–104; and for E, 40–66 and 8–127.

50 Cf. Edwards v. California, 314 U. S. 160 (1941) [concurring opinion]; and West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943). [opinion of the Court]

51 The Judicial Mind, op. cit. fn. 11, supra, pp. 209–217.

52 Ibid., pp. 262, 266, 271.

53 Ibid., pp. 204, 224.

54 Barnett, op. cit. fn. 2, supra, p. 241. Cf. the works, all there cited, of the following authors: Fail man at p. 487; Gerhart, “A Decade of Mr. Justice Jackson,” at pp. 969, 971; Jaffe at pp. 992–993; Nielson at pp. 384, 401–403; and Weidner at p. 593.

55 United States v. Ballard, 322 U. S. 78, 93 (1944).

56 For all Jackson's votes on the merits (including decisions in which he wrote no opinions), the marginals for the political variable are 21–41 for the period before the 1945 Term, and 72–139 thereafter. X2 for these two ratios is 0.013, which indicates that the goodness of fit is significant at >.95. Certainly these data confirm the refutation of this hypothesis.

57 For all Jackson's votes (including decisions in which he wrote no opinions), the marginals for the economic variable are 68–87 for the period before the 1945 Term, and 26–177 thereafter. X2 for these two ratios is 32.5, which indicates that the increase in the conservatism of his voting on economic issues is significant at <.0005, irrespective of whether or not, he wrote opinions to rationalize his votes.

58 The Judicial Mind, op. cit. fn. 11, supra, pp. 105, 113–115.

59 The corresponding correlations between political liberalism/conservatism (in either content-values or voting) and majority/dissenting opinions, are negative, low, and insignificant. Of course for the entire period of twelve terms, the correlations for the economic variables necessarily are positive and significant: .475 between content-values and opinions, and .458 between voting and opinions.

60 All three economically liberal dissents came in the 1952 Term.

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