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VI. The Roosevelt Court: Votes and Values*

Published online by Cambridge University Press:  01 August 2014

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

In No. 78 of The Federalist, Alexander Hamilton wrote: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…” Whatever acceptance this view of the judge as automaton and of the judicial process as a ministerial function may once have had, little trace remains of it today, after ten years of experience with the “reorganized” Supreme Court. The Roosevelt Court was not, of course, the first on which judicial decisions were influenced by the personal values of its justices. Throughout the history of the Court, the autobiographical element in its output has been as important as when Justice Holmes bluntly told his colleagues in 1905 that “this case is decided upon an economic theory which a large part of the country does not entertain.” But the prevailing theory was that judges did not make law, they merely found it.

The constitutional revolution of 1935–37 changed all that. The public, as Max Lerner says, “began to see that judicial decisions are not babies brought by constitutional storks, but are born out of the travail of economic circumstance.” For two terms, the Constitution meant what Justice Roberts said it meant. After the consummation of the revolution, the forces which had been most ardent in picturing earlier conservative courts as demonstrating the workings of a government of law could only explain the strange phenomenon of a liberal court as the triumph of a government of men. Additional recent factors serving to underline the personal basis of judicial decisions have been the tossing of barbed phrases on the bench, Justice Jackson's ill-tempered public attack on one of his colleagues, and the mounting tide of dissenting opinions.

Type
Ten Years of the Supreme Court: 1937–1947, Part II
Information
American Political Science Review , Volume 42 , Issue 1 , February 1948 , pp. 53 - 67
Copyright
Copyright © American Political Science Association 1948

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References

1 Lochner v. New York, 198 U.S. 45 (1905).

2 Ideas for the Ice Age (1941), p. 259.

3 Terms are designated by the year in which they began. The “1944 term” refers to the 1944–45 term.

4 The average range of agreements over the period studied has been as follows:

5 McCune, Wesley, The Nine Young Men (1947), pp. 56–57.Google Scholar

6 Girouard v. United States, 328 U.S. 61 (1946).

7 Zap v. United States, 328 U.S. 624 (1946); Davis v. United States, 328 U.S. 582 (1946); Harris v. United States, 67 S.C. 1098 (1947).

8 There can be little doubt that the Court divisions in these 273 non-unanimous oases, representing 57 per cent of all the disputed decisions handed down since the 1941 term, represent the prevailing structure of opinion on the Court. In the remaining 43 per cent, there is a wide scattering of issues, on most of which no clear pattern of division emerges. For example, there were 44 non-unanimous decisions during the six-year period involving federal taxation. Six of the eleven members of the Court were within ten percentage points, one way or the other, of the majority position of the Court on these cases, which was 70 per cent favorable to the government. Black was the only member of the Court to be substantially more favorable to the government (82 per cent), while Stone, Vinson, Burton, and Roberts were substantially less favorable to the government, Roberts voting for the government only 33 per cent of the time.

9 See especially Schlesinger, Arthur M. Jr., “The Supreme Court: 1947,” Fortune, Jan., 1947.Google Scholar

10 Justice Frankfurter himself obviously subscribes to this view of his judicial decisions. “Were my purely personal attitude relevant,” he wrote in his dissent to the second flag salute decision, “I should wholeheartedly associate myself with the general libertarian views in the Court's opinion….” (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). And when the case of Willie Francis, the Negro who failed to die on his first trip to the electric chair, came up, Frankfurter said that if he voted to save Francis from a second trip, “I would be enforcing my private view rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution” (Louisiana ex rel Francis v. Resweber, 67 S.C. 374, 1947). He did not explain how he knew what was the “consensus of society's opinion” on a question that admittedly had never arisen before.

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