JUDICIAL POTPOURRI

The Judicial Bookshelf

by D. Grier Stephenson, Jr.[1]


The Supreme Court, Thurman Arnold reminded us a half-century ago, "is our most important symbol of government. It should be the concrete dramatization of the ideal that there is a power which prevents government action which is arbitrary, capricious, and based on prejudice."[2] The ideal was an extension of President Washington's belief that "the true administration of justice is the firmest pillar of good government, . . . essential to the happiness of our country and the stability of its political system."[3] The ideal justified James Madison's conviction that constitutional supremacy "without a supremacy in . . . exposition and execution. . . would be as much a mockery as a scabbard put into the hands of a soldier without a sword in it."[4] Yet, Arnold maintained, "neither faith in the notion that truth is revealed to judges, nor trust in the personal expertness of any individuals sitting as judges, is congenial to our ways of thinking today. We still think as Newton thought, . . . that our governmental institutions must be rational."[5]

Public scrutiny and understanding are therefore essential to public confidence in the Court. This confidence in turn undergirds judicial power and effectiveness. Judicial independence and the absence of direct political accountability make possible the "concrete dramatization" of the constitutional ideal. That same judicial independence in a democratic system makes necessary a unique and unending examination of the justices and their work. Justice Stone characterized such oversight as "fearless commentary."[6] So, it should come as no surprise that books and articles on the Court, the Justices, and their decisions have long occupied a special place in the literature of American political institutions. For study of the judicial process involves more than satisfying curiosity of author and reader. It is a public service to citizens and government alike.


The Justices

In the second edition of Justices and Presidents,[7] Henry J. Abraham sees the past dozen years as "characterized by the continuing recognition of the verities of the Court's role as a policymaker, of its tripartite role as a legal, a governmental, and, yes, a political institution." The time lapsed since the first edition appeared in 1974 has demonstrated "that, contrary to the expectations, hopes, or fears of those who profess to understand the Court and its role best, the Burger Court. did not--with the arguable exception of aspects of the realm of criminal justice-'undo' the jurisprudence of the Warren Court Rather, Abraham finds a Court continuing its embrace of "an activist role, of judicial legislating, of lawmaking, of judicial activism."[8]

It is because of the Court's historic policymaking role that the subject of Abraham's book merits the attention he gives it. From President Washington's appointment of John Jay in 1789 to President Reagan's nomination of Sandra Day O'Connor in 1981, Abraham traces the politics of presidential efforts to fill the Supreme Bench. What criteria have Presidents employed in selecting justices? To what degree have presidential expectations for nominees been realized in their decisions? Criteria and expectations are important because they have acutely concerned almost every president. "[F]ar more than any other nominations to the federal bench, those to the highest tribunal in the land are not only theoretically, but by and large actually, made with a considerable degree of scienter by the Chief Executive."[9]

Regarding the first question, Abraham identifies "a quartet of steadily occurring criteria. They include merit, personal friendship, "balance" or "representation" on the bench, and political and ideological acceptability. While most appointments have involved more than one of these factors, the fourth has most frequently been the overriding consideration.[10] One might add "luck" as well, as did Justice O'Connor: "that decision from the nominee's viewpoint is probably a classic example of being the right person in the right spot at the right time."[11]

As for fulfilling presidential expectations, the record is mixed. The list of 102 justices contains more than a few "surprises." "You shoot an arrow into a far-distant future when you appoint a justice," Alexander Bickel observed, "and not the man himself can tell you what he will think about some of the problems he will face."[12] Even senators, asked for their "advice and consent," may feel the same way." . . . I believe we should caution the electorate that even if they want us to apply a litmus test, . . . it is not something we can do very well," opined Senator Biden during the debate over the O'Connor nomination. "[O]nce a justice dons that robe and walks into that sanctum across the way, we have no control. . . . [A]ll bets are off."[13]

Aside from examining expectations and their fulfillment, Abraham wades into what some might see as the murky waters of merit. How, actually, is one supposed to assess judicial merit? Are there standards sufficiently clear to separate good appointments from bad ones? Nominations to the Court almost always generate positive and negative reactions that derive from partisan or ideological views, but does the historical record suggest objective criteria which can be used to rate merit? Furthermore, are there similar criteria by which to judge on-bench performance? Abraham believes that such criteria exist, demonstrating "a remarkable degree of agreement."[14] Attesting to common measurement are the similarities among several rankings of Supreme Court "greats." "[T]here is something closely akin to consensus among. . . observers who represent the gamut of the socio-political and professional spectrum," he contends. This consensus in turn means that presidents and their advisers are now in a position to "opt for merit" while presumably not overlooking other considerations which may fairly enter into the politics of selection.[15] From this vantage, Abraham proceeds to offer an assessment of both appointment and performance which fills most of the volume, a book brimming with both facts and anecdotes.

While Justices and Presidents contains biographical data on all who have sat on the Court, Philippa Strum's Louis D. Brandeis[16] is devoted, as the title suggests, to the life of one of them. Publication of a judicial biography is always a noteworthy event, for it is from such studies that so much of the current knowledge about the Supreme Court has been gleaned. As Frankfurter himself advised, before his own elevation to the bench, "the work of the Supreme Court is the history of relatively few personalities. . . . To understand what manner of men they were is crucial to an understanding of the Court."[17]

Even though Brandeis retired from the bench nearly five decades ago, Brandeis' career as a lawyer and a jurist remains appealing to scholarly investigation. A flurry of studies has appeared in recent years.[18] Moreover, publication of the important set of Brandeis' Letters is now apparently complete.[19] The reason for this on-going attention seems clear. Some of it undoubtedly springs from interest in the Court during the time Brandeis sat as a justice, but more of it probably comes from the attraction Brandeis himself presents. Strum's book is a good example of the latter. She does not get to Brandeis' nomination by President Wilson until page 291, in a book with 417 pages of text. It is all but certain Brandeis would today still be regarded as a major American figure even if he had never been appointed to the Court. Indeed, it helps in an assessment of Brandeis' life to remember that his twenty-three Court years did not begin until he was sixty.

Brandeis, after all, was part of virtually every major social and economic movement in the United States during his long life of service. One cannot delve far into labor questions, Wilson's New Freedom, Franklin Roosevelt's New Deal, women's suffrage, Progressivism, civil liberties, "trust-busting," or Zionism without meeting Brandeis. All of these topics, and more, find a place in Strum's study. Hers stands out as the most thorough treatment of Brandeis since publication of Alpheus Thomas Mason's Brandeis[20] four decades ago. Certainly Strum's Brandeis is the most comprehensive account in print.

Even though Brandeis was known as one who jealously guarded his privacy, Strum seems to have gone far toward her goal of displaying Brandeis the man in his many facets as thinker, doer, teacher, and Justice. She sees many "puzzles" in Brandeis' life that call for examination and explanation. For example, what were the origins of his attraction to "smallness?" How did the Jewish son of German immigrants gain acceptance at Harvard and in Brahmin Boston? How could he earn so much money from law practice and still be known as the "people's attorney?" What influence did Brandeis have on sociological jurisprudence, especially alongside the contributions of Roscoe Pound and Justice Holmes? Why were facts more important to him than legal principles in the judicial process? Did his many battles for many public causes color his views and influence his decisions as a justice? How did he manage to be so involved extra-judicially during much of his tenure on the Court and yet avoid charges of impropriety? The last question is significant because one of the criticisms hurled at Brandeis in the 1916 fight over his confirmation was that he lacked "judicial temperament."[21]

Strum is careful when probing the extent of Brandeis' influence on the New Deal. While honored as "Isaiah" by the soldiers of the New Deal, she concludes that they paid no attention to the heart of Brandeis' thought. "The New Dealers thought they owed many of their important policies to him," she writes, "and that they rejected only those that would have attempted to return to the economics of the nineteenth century." But Brandeis had strictures against centralized power. Because they misunderstood his teachings, the New Dealers missed their chance. They could have "revitalized the democratic process and extended it to industry." They could have created "an industrialized society based as much on liberty and equality as it is today on technology and machines." If the New Dealers asked how best to control "corporate giantism," Brandeis would not have accepted "the legitimacy of the question." [22]

As for Brandeis' work on the Court, Strum enriches what is known about his style as a justice and his relationships with Holmes and the other brethren. Contributing to his intellectual leadership on the Court was his use of the memorandum as a device to crystalize the thinking of others as well as his own and to change minds too.[23] Surprisingly, Brandeis regarded his own style as "nonpolitical," in contrast to Van Devanter's which looked too much like lobbying. Strum notes, however, that Brandeis' "courtesy and self-restraint served the same end, getting other judges to alter or moderate their views." Indeed, she rates him (on the bench and elsewhere) a "first rate teacher and politician."[24]

If Brandeis' tenure on the Court marks one era in judicial history, Hugo L. Black's marks another. Just as one encounters Frankfurter in a study of Brandeis' life, Frankfurter is invariably a powerful presence in any account of Black's. Indeed, Frankfurter can be seen as a crucial figure in at least two "generations" of justices. So it should come as no surprise to find a newly published volume with Black and Frankfurter forming the centerpiece.

Mark Silverstein's Constitutional Faiths[25] appeared halfway between the centennial anniversaries of the births of Felix Frankfurter and Hugo Black.[26] As Supreme Court justices, each wrestled with a dilemma bequeathed by the framers: freedom from direct accountability to the electorate has invited rule by judges, but this independence has also worked a constraint. Even before their appointments to the Court by Franklin Roosevelt, Frankfurter and Black were acutely aware of the tensions that abrogation of the popular will entailed. Each attempted over a long judicial career to construct an elaborate resolution which helped to define constitutional jurisprudence for a third of a century. And the reverberations of the debate between these giants continue.

Constitutional Faiths is not a judicial biography, but it is more than a study of contrasting theories of constitutional interpretation.[27] According to Silverstein, understanding judicial decisions cannot come without appreciation of role, which in turn follows from basic political values. So, judging is more than legislation while wearing a robe. "Judges are different because . . . the operation of key personal values tends to limit rather than expand the range of discretion" judges possess.[28] The author does not explain exactly why judges are different from legislators or why judging is different from making law. It may be that role is just as important for decision makers outside the judiciary. It may be that judicial discretion is rather a function of one's sense of official purpose: results, cost-benefit analysis, doctrinal faithfulness, or whatever.

With Black and Frankfurter, Silverstein's thesis linking decisions to role and role to values is convincing because both men were unusually consistent. Frankfurter came to the bench with an "unrelenting faith in education, expertise, and elites. . . ."[29] Even in the administrative state, individual liberty would flourish, Frankfurter thought, because "scientific training . . . would allow men to employ public power in a disinterested fashion to control private power."[30] Here was Brandeis' influence: a belief in the power of education, facts, and knowledge, all working to overcome the weaknesses of an individual's limitations. The judicial role could be narrow, therefore, since judges could trust others to make the correct decisions. This conviction enabled Frankfurter to favor civil liberties, to be sure, but not judicial protection of them. That would not be necessary with the proper leadership in place. So, in the first flag-salute case, Frankfurter argued for deference to the Minersville school directors, just as he argued a decade later for deference to Congress in the Dennis case.[31] Yet Frankfurter, according to Silverstein, was never successful in explaining how his disinterested judicial judgment could be practiced by another, because there were situations such as the released-time cases.[32] where Frankfurter was more than willing to substitute his policy choices for those made by school boards or legislatures. Frankfurter was not always persuasive in removing the self from self-restraint.

By contrast, Hugo Black feared concentrations of public as well as private power, holding little faith in experts as the heralds of progress. Proclaiming absolutes and thereby fixing restraints on judicial judgment were his way of limiting the Court's influence on government. If the justices were not accountable to the people, they would still have to be accountable to the supreme voice of the people--the Constitution. Otherwise, judges were simply another elite which might strangle the popular will, as concentrations of corporate power and unresponsive political institutions had done. This did not mean that Black rejected the need for judges. He did seem, after all, to agree with Madison that abuses of power would more often than not be abuses of a minority in accord with the wishes of a majority.[33] But Black's view of the judicial role barred him from accepting the open-ended invitation to govern implicit in Justice Cardozo's opinion in Palko v. Connecticut,[34] a position Frankfurter reasserted in his concurring opinion ten years later in Adamson v. California.[35] Black fought against what he considered judicial license even late in his career as his dissent in Griswold v. Connecticut attests.[36] Here he was determined to distinguish between the power of judicial review (which he thought the framers intended and which therefore was legitimate) and the revisionary power (which the framers rejected and which he thought the majority was practicing in the birth control case).

Even with the power of role perception, Silverstein acknowledges that role is a product of more than political values in a vacuum. These values are themselves honed on the complexities of "personality and personal relations," a signal that the book continues, but hardly concludes, the exploration of the dynamics between these two men. Indeed, the full story of the personal and professional relationship between Black and Frankfurter has yet to be captured in book form.


The Work of the Court

The focus on personalities in studies of the Court is important because of the knowledge gained about how the Court works. Equally important in understanding the Court is examination of what the justices do--their decisions. If constitutional interpretation is the pre-eminent (although certainly not the only) task of the Court, then it is important to remember that constitutional interpretation manifests itself through a progression of cases. To comprehend the former requires study of the latter.

Fred W Friendly and Martha J. H. Elliott have written a series of constitutional vignettes for their volume The Constitution: That Delicate Balance.[37] Their book is intended as a companion for the television series of the same name produced for the Public Broadcasting System. While undoubtedly useful in that setting, the book has its own merit and can stand alone.

"Case analysis," Walter Murphy and Joseph Tanenhaus have said, "is basically both textual analysis--scrutiny of the internal structure and implications of judicial reasoning--and contextual analysis--examination of the setting in which the problem arose and . . . the effect a decision may have had."[38] Friendly and Elliott provide sixteen short analyses, each designed to illuminate the development of a particular area of constitutional law. Beginning with "Barron's Wharf" during the time of the Marshall Court and the case of Barron v. Baltimore,[39] the volume concludes with "The Sacking of Greytown,"[40] a war-powers controversy in the Pierce Administration with echoes that continue today
This arrangement of chapters is symbolic of American constitutional interpretation. Some questions do have definite answers, and the answers can settle a dispute for a very long time. So, Chief Justice Marshall's explanation that the Fifth Amendment was not a constraint on state power was not only true to the historical record but remained largely unchallenged until it was made irrelevant by ratification of the Fourteenth Amendment in 1868 and subsequent decisions like Chicago, B. &. Q. R. Co. v. Chicago."[41] Yet, other constitutional questions do not easily make way for firm and lasting answers. The on-going debate between the president and Congress over the War Powers Act of 1973 and the expansive executive prerogative to which it responded are typical of issues of balance and relative influence that do not quickly lend themselves to solution by judicial decision.

Friendly and Elliott properly conclude that the "1787 version [or the 1791 version, for that matter] of the Constitution was only the first draft of what we now call the law of the land."[42] By this they mean that the Constitution of the late twentieth century is a hybrid of the text of the document and the hundreds of court decisions which have sought to discover its meaning. "A parade of disparate claims brought by citizens and non-citizens demanding their day in court has made all the difference." Viewed in this manner, "these heroes and scoundrels, winners and losers, may have had as much to do with the writing of the Constitution as the drafters."[43] Indeed, it is through court cases that the Constitution seems not so much a legal document as it does a human document. As Professor Frankfurter once claimed, the words of the Constitution "are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual justice free, if indeed they do not compel him, to gather meaning, not from reading the Constitution, but from reading life."[44]

The authors go out of their way through prodigious research to display the personalities of the litigants involved in the cases that comprise the meat of the volume. Indeed, some of this information is not easily available elsewhere. Their selection of cases reflects their interests. Most of the cases involve the Bill of Rights and, of these, most concern the First Amendment. They make no pretense of covering all parts of the Constitution. So only one chapter strictly examines presidential power (the Greytown incident), and one does double duty for both congressional power and federalism (the Dartmouth College case and the National Bank case).[45] Their selection of cases also reflects the way in which Americans have come to understand constitutional safeguards. For Madison and other framers, protection of individual liberty was a key objective of government, an objective to be reached by "contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places . . ." "A dependence on the people," Madison wrote, "is, no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions." The policy would be achieved by "supplying by opposite and rival interests, the defect of better motives.[46] It is fair to say that this arrangement is what the framers meant by "that delicate balance."

Americans since Madison have enlarged on these "auxiliary precautions." And even Madison, at Thomas Jefferson's urging, soon saw the connection between judges, a Bill of Rights, and individual liberty.[47] Thanks in part to Chief Justice Marshall and judicial review, judges supply their own checks in the context of cases interpreting the strictures of the Constitution. Americans have come to look not just to what Hamilton called "the vibrations of power" for protection against abuse of power but to a Bill of Rights in the hands of an independent judiciary.

Alice Bartee's Cases Lost, Causes Won[48] is also a collection of case studies. While case studies in The Constitution demonstrate the growth of constitutional theory, Bartee 's case studies demonstrate the importance and influence of events and circumstances at particular stages in the progress of a case from beginning to end. That is, Bar-tee's purpose is not to show the evolution of the Constitution but to understand more fully the decision-making process itself.
To this end Bartee employs systems theory,[49] although one does not have to be a devotee of this approach to the study of government and politics to find her book a highly useful and informative one. In the five dollar words of systems theory, one looks for (a) inputs (the facts, beginnings, and development of a case in the courts), (b) conversion (the actual process of deciding the case), (c) outputs (the majority opinion, with any dissents and concurrences), (d) impact (compliance and implementation of the decisions), and (e) feedback (reaction from the public and other political institutions). As Bartee applies systems theory to the study of the Court, different stages or steps take on varying degrees of importance for each case.

Using this model and four Supreme Court decisions, Bartee attempts 'to secure a unique perspective on the judicial process at work."[50] At the outset, she chooses Frohwerk v. United States,[51] to demonstrate input variables, especially the crucial role of counsel in shaping a case. Frohwerk had been charged with violating the Espionage Act of 1917 because of his part in publishing a German-American newspaper. One of his attorneys was Joseph Shewalter whose behavior was so self-aggrandizing, according to Bartee, that he virtually drove Justice Holmes and the rest of the Court to a decision upholding the conviction. Whatever chance Frohwerk might have had otherwise in winning his case was lost once he hired Shewalter to defend him. Bartee 's account of counsel's performance must be read in order to be believed.

The "conversion" stage is illustrated by Minersville School District v. Gobitis,[52] the first flag salute case. Here Justice Frankfurter spoke for an eight-justice majority upholding the validity of the school rule. Justice Stone was the lone dissenter. Students of constitutional interpretation have wondered why it took Justices Black, Douglas, and Murphy, all three ardent liberals, so long to announce their error in joining Frankfurter's opinion. The answer, claims Bartee, lies in confusion at conference when Gobitis was decided, in a breakdown in communication among the justices, and in a "misperception of attitudes and beliefs." According to Bartee, there was little discussion at conference and Chief Justice Hughes did not even take a vote. "Stone was not quick . . . and . . . had assumed that a vote would be taken. Unable to adjust . . . he lost the opportunity to voice his opposition. . . ." She believes that a thorough debate in conference might not have produced a victory for the Gobitis children but probably a five-to-four split, "definitely a weaker decision."[53]
As an "output" Bartee selects the complex case of Walker v. Birmingham,[54] a product of the civil rights movement in the South. Five justices agreed to uphold convictions for contempt of court, where demonstrators had defied an ex parte injunction against further marches without first having sought a permit. The closely divided Court produced four opinions (including three dissents) which Bartee finds revealing of "how and why justices decide as they do. . . ." In the longest chapter of the book, she concludes that there was one critical set of factors in the decisions of the case: "the attitudes of the nine judges who made the decision." For the majority (Justices Stewart, White, Clark, Black, and Harlan) and minority (Chief Justice Warren and Justices Douglas, Brennan, and Fortas), different questions were important. One side queried whether the Constitution compelled Alabama to allow the demonstrators to violate the injunction without any attempt to obtain a parade permit. The other side asked whether the Constitution required state laws violating the First Amendment to be struck down. "Given the facts obviously assumed by each question," writes Bartee, "it is easy to see why the Court would be divided in its decision."[55]

Demonstrating "impact" is the dramatic and tragic White v. Texas, the Bob White Case.[56] White was black and an accused rapist. The victim was white. After the first conviction was overturned by a Texas appeals court, the second conviction was set aside by the United States Supreme Court. Like Chambers v. Florida,[57] White's case involved a coerced confession. As might be expected, the dominant community reaction to White's second legal victory was extremely hostile. At the beginning of the third trial, as the jury was being impaneled, the husband of the victim reportedly walked up to the defendant and killed him instantly with a pistol shot. Not only was the Supreme Court effectively overruled by murder but the district attorney urged acquittal when the accused killer was himself brought to trial six days later. "I have always said that I would never ask a jury to do anything that I wouldn't do myself," he explained to the jurors. After two minutes of deliberation, they agreed. Outraged reaction by civil rights groups throughout the nation brought no redress. The Justice Department refused to act. The Court was left powerless, in Bob White's case at least.[58]

The final chapter reviews "feedback," illustrating the influence of each case on the development of the law. The justices eventually changed their minds on the questions at issue in Frohwerk, Gobitis, and Walker. With White the Court later legitimized expansive federal intervention to secure civil rights for blacks, including criminal convictions when local justice had broken down.[59] "Each case generated new demands and the feedback cycle operated to systematically [sic] channel these demands back into the system. The judicial process," she writes, "is thus seen in its totality--ongoing with incremental changes."[60]

Changes, both incremental and abrupt, wrought by the Supreme Court over the past two and a half decades have been faithfully chronicled and analyzed by The Supreme Court Review.[61] The latest annual volume, for 1983, is the thickest yet, with a title page displaying twelve chapters. Their topics span the "live" issues in constitutional law, from division of powers among the branches to federalism and personal freedom. Claiming three chapters, religious liberty receives the greatest emphasis. Space permits one to be surveyed here: Michael E. Smith's "The Special Place of Religion in the Constitution."[62]

Smith first seeks the justification for the special constitutional place religion enjoys today. The answer is not "interpretism" (or emphasis on the specific reference to religion in the First Amendment). Rather, religion's place is due to "present day policy reasons," instead of language or history. After all, religious liberty enjoyed no special constitutional place in Supreme Court decisions before 1937. "Before that time, the Supreme Court readily upheld government actions . . . that seem highly problematic by present standards."[63] Smith accepts Justice White's assessment that the Constitution and history have left the courts "a wide choice among many alternatives. Choosing has meant carving out what the judges "deemed to be the most desirable national policy governing various aspects of church-state relationships."[64]

Smith next explores the Justices' "articulated" and "underlying" justifications for religion's special place. What, after all, encourages a Justice to regard a particular religious claim favorably or unfavorably? For articulated justifications, he looks mainly to judicial opinions in the cases; for the underlying ones, he relies on biographical and autobiographical material as well as the opinions. The cases fall into two groups, concentrated in the years 1940-952 and 1960 to the present. He labels the former "first generation" cases (and justices) and the latter "second generation" cases (and justices).

For "first generation" justices, the potential for social harm in religion was important. Justices Black and Douglas. . . thought that much of corporate religion [presumably established, mainline, traditionally religious bodies] is socially harmful. It is apt to be greedy, totalitarian, and politically and scientifically backward.[65] There was also fear that government aid to corporate religion might lead to persecution of minor groups. So, they tended to link support for corporate religion with a supposed tendency to foster social conflict. By contrast, when small sects (what Smith terms 'individual religion") were involved in cases, emphasis switched from the possibility for social harm to the desirability of personal freedom. 'Accordingly, their view of religion was no longer unfavorable but indifferent and even favorable." Smith links such views with Justice Rutledge as well. In contrast, Frankfurter seemed "to have had an unfavorable view of religion generally. . . . He cherished it mainly as a barrier against the threat of corporate religion."[66]

The "first generation" justices did not originate these ideas. Smith finds their roots in the formative years of the American Republic. "Two of the most potent forces in American religious life were Enlightenment rationalism, typified by Thomas Jefferson, and the free church. Protestants, heirs of Roger Williams."[67] They joined in hostility to established churches and in an individualistic view of religion. Moreover, such thinking was prevalent in some quarters during the two decades before these 'first generation" cases were decided.[68]

Among "second generation" justices (excluding of course "first generation" justices who were still sitting after 1960), Smith finds "substantially different" views toward religion. The emphasis on social harm has largely disappeared, with Justice Fortas' opinion in Epperson v. Arkansas,[69] the only recent example of the older hostility. "Concern about persecution has also largely disappeared . . . [and] some. . . have even begun to question the claim that corporate religion contributes to social disunity."[70] However, in cases involving public aid for sectarian schools, a few justices have worried about the tendency for such support to spark disunity and strife.

There has even been recognition in recent cases of social benefits of corporate religion, including religion's "contribution to social diversity, to public welfare programs, and to the development of good moral character."[71] And these cases have not involved small sects or individuals. but "mainline" religious groups. Paired with this more favorable attitude toward corporate religion is less sympathy for individual religion, although Smith cautions against overstating the extent of this shift among "second generation" justices. The most outspoken among them have been Chief Justice Burger and Justices Stewart and White, with their views characterized by a "moderate social conservatism . . . [that prefers] corporate religion that is not highly disciplined and expansionist."[72] Again, their ideas do not diverge from dominant thinking during the 1940s and 1950s, when "Americans overwhelmingly approved of corporate religion."[73]


The Court at Work

An important but largely unseen part of the judicial process that precedes the decision in a case is of course the selection of a case for review. Since passage of the Judiciary Act of 1925, the Supreme Court has enjoyed discretionary review over much of its docket. Even the obligatory part of its jurisdiction now appears, more often than not, to be discretionary in practice. The result is a situation familiar to anyone aware of recent reports on the workload of the Supreme Court: a docket where the number of filings has multiplied sharply over the past three decades, but where the number of decided cases has increased only moderately. This ratio invites research.

If what the justices decide is worthy of study, and if the justices will decide only a comparatively small number of cases each term, it becomes a matter of some interest to understand the process of case selection. Explaining this process is the objective of Doris Marie Provine 's Case Selection in the United States Supreme Court.[74] But explanation encounters barriers at the outset. The Court's own Rule 17 on the granting of certiorari does not adequately account for those large numbers of cases each term that are turned away at the door.[75] The rule can really do no more than suggest some of the characteristics of a case that will be taken into account. Further complicating the research task is the secrecy within which the selection process operates. Moreover, justices typically do not explain publicly why review is or is not granted. While the number of dissents to denials of certiorari has been on the increase in recent years, such dissents remain relatively uncommon and, when they occur, do not necessarily speak for everyone who preferred to grant review.
Provine skirts these barriers by making use of Justice Burton's papers in the Library of Congress. Burton was on the Court from the 1945 through the 1957 terms and used his docket books to record each justice 's vote on each case that came before the Court. While papers of many justices are open for inspection, Burton's are special because no other collection, Provine maintains, contains records on case selection during the years since 1925.[76]

Provine 's book is thus a case study of case selection. Its validity depends on the accuracy of Justice Burton's records. On this Provine expresses little doubt, concluding not only that his case record is complete but that as a person he was "careful and precise," and that "he kept accurate, exhaustive records."[77] Its usefulness outside the years 1945-1958 depends on whether her findings can be generalized to most justices, or whether they were to a large degree unique to those who served during this time.

Like others who have studied the selection process but who did not have access to the Burton data, Provine supports their underlying premise: "that subjective considerations lie at the heart of case selection."[78] But her conclusions differ from others in finding that the 'justices' perceptions of a judge's role and of the Supreme Court's role in our judicial system significantly limit the range of case-selection behavior that the justices might otherwise exhibit." From a high percentage of unanimous votes on the question to review, Provine concludes that a "high degree of consensus exists within the Court" on the role the Court should play as the tribunal of last resort in the federal system.[79]

Of course, there were plenty of cases where the justices disagreed on review. These divisions reflect differences in how they weigh the fundamental responsibilities of the Court against the circumstances of actual cases" as well as how the justices viewed the merits of the claims petitioners made for relief.[80] Some justices were much more inclined than others to consider the outcome in the lower court as relevant to whether the cases deserved review. Some justices tended to be very "review-prone" while others were consistently "review-shy."

Her research also suggests two reasons why some litigants are more successful than others in gaining access to review in the Supreme Court: awareness of "the conception the justices hold of the proper work of the Court," and "the differences that exist in the petitioning expertise of litigants." As expected, the United States Government was the most successful petitioner during the years Provine studied. Why? "In case selection and preparation, the solicitor general cultivates the image of an officer of the court, rather than an ordinary litigant eager to win, no matter what." Also important is the ability of the solicitor general "to anticipate and articulate the Court's fundamental concerns." These concerns involve the efficiency and power of the national government and suggest that here the justices feel a special responsibility.[81]

Provine worries lest the continued emphasis the justices place on enlarging their discretion to take cases gives undue advantage to "sophisticated and experienced petitioners, especially the U.S. government."[82] If present practices favor frequent litigators, does that not further increase the influence of organized interests in American politics? In any event, the data show that the popular perception of taking a case "all the way to the Supreme Court" is false. The legal merits of a case hardly explain why one case is chosen while many others are not. But survival of this popular perception must mean, Provine believes, that the justices accept "enough disputes of concern to the public to sustain its image as an available forum."[83]

Most significantly for the integrity of the Court, she concludes,"[N]one of the Burton-period justices was so anxious to see his preferences for one outcome over another become law that he routinely voted in case selection to advance that objective." Shared beliefs on appropriate judicial behavior seemed to prevent the Burton-era justices "from simply voting their policy preferences on case selection." Perception of role thus became a "variable" between a justice's policy preferences and the same justice's vote to review.[84]

To the extent that this conclusion applies to justices other than those who sat during the Burton era, scholars have a lesson to learn from Provine 's work. Of course, the cases the Court receives make it a very political institution in the sense that the outcomes of those cases affect the allocation of power. This is why no president takes a vacancy on the Court lightly. But to say this is not to say that judges are either legislators who wear robes or bureaucrats cloaked in other guise. Constitutional interpretation is surely political jurisprudence, but it is still jurisprudence. "Any accurate analysis of judicial behavior must have as a major purpose a full clarification of the unique limiting conditions under which judicial policy making proceeds."[85]

In contrast to the secrecy which normally surrounds the selection of cases, judicial scholars have always had available the published opinions of the justices explaining their views of decided cases. These opinions have been vital in understanding the Court because it is what the justices say about the Constitution that distinguishes the Court from the other branches of national government.

Heretofore, research on a particular justice or on several required a painstaking cataloging of opinions simply as preparation to work. It is as if a student of literature had to sift through dozens of books and volumes of bound periodicals in search of essays and articles penned by a certain author. (And to make, the analogy exact, one would have to assume that the indexes and contents pages had all been removed!) No one who has done very much judicial research takes for granted an index to periodicals. To be sure, computer services have lately eased the effort, but even for the time periods they cover they can sometimes be both clumsy and expensive, generating alternately either too much or too little information.

Filling this void in a very important way are the two volumes of Supreme Court of the United States 1789-1980: An Index to Opinions Arranged by Justice,[86] as edited by Linda A. Blandford and Patricia Russell Evans in a project sponsored by the Supreme Court Historical Society. The editors see their work as a useful supplement to computerized services and as an indispensable aid to those students of the Court who do not have instant access to legal data banks. Using the FLITE data base of the United States Air Force, Blandford and Evans have cataloged all opinions written and published by all justices from 1789 through the end of the 1979 term in September of 1980. The volumes are organized chronologically, by Justice. This means that volume one begins with Wilson and Jay and concludes with McKenna; volume two begins with Holmes and ends with Stevens.

The editors have grouped opinions into seven classifications: majority opinions, concurring opinions, and dissenting opinions, opinions announcing judgment, separate opinions (such as those concurring and dissenting as well as the early seriatim opinions), opinions as Circuit Justice (before 1969 these were not published in the United States Reports), and statements (where these are written by the Justice in third person, or otherwise express the Justice's views, and announced through the reporter of decisions). Where two or more justices jointly authored an opinion, the word "joint" appears, but it should be noted this designation does not include the far more common situation where one justice joins an opinion authored by another. With one exception, the index understandably includes no classification by subject matter "because of the technical and substantive difficulties involved."[87]

While one must be cautious in drawing conclusions from lists alone, the index of opinions suggests several comments about the Court. First, while the practice of seriatim opinions was common before John Marshall became chief justice, the "opinion of the Court" predated his appointment. Significant perhaps is the list of 11 majority opinions authored by Oliver Ellsworth, Marshall's predecessor. The practice of having the chief justice speak frequently for the Court--a hallmark of the Marshall Court--was at least underway by the time of Marshall's arrival, even if it was not yet firmly established. Second, Marshall was not only the chief spokesman for his Court, especially early in his tenure, but dissenting opinions were relatively rare. Between 1801 and 1835, only 42 are recorded, and 18 of these are credited to William Johnson, aptly called "the first dissenter."[88] Third, among justices who served mainly in the nineteenth century, the first Justice. Harlan was by far the most prolific writer of dissents. No one else seems to come close. Fourth, dissenting opinions appear far more frequently today. For example, Justice Rehnquist--to single out a current member of the Court--wrote more dissenting opinions between 1971 and 1980 (the years of his service included in the index) than Justice Harlan did, during his entire time on the Court, from 1877 until 1910. Even as late as the Brandeis era on the Court, dissents were rather uncommon. For Brandeis himself, a justice remembered for noteworthy dissents, dissenting opinions counted for only a small part of his on-bench writing--454 of his 528 opinions were written for the majority.


The Constitution and Judicial Review

The Justices' opinions are objects of study not just because they explain who won and who lost but also because of what they reveal about the justices' attitudes toward the Constitution and judicial review. Even in the earliest years of the Court, controversy swirled from time to time over the reach of judicial power. Chisholm v. Georgia,[89] landed the justices in controversy because the judicial view of the Constitution did not square with dominant opinion. So one of the first exercises of judicial power became the first instance in which the Supreme Court was overruled by constitutional amendment (the Eleventh). In Chisholm, the Court was activist, superimposing its views of correct policy on others. Political forces in Congress and the state legislatures would have much preferred restraint or deference. So was born the debate between judicial activism and judicial restraint. What do these terms mean? Which one should the Court follow? Has the Court adhered to one more than the other?

Answers to these questions and others are pursued in Supreme Court Activism and Restraint.[90] Editors Stephen C. Halpern and Charles M. Lamb have brought together 15 original essays which explore the topic of judicial activism and restraint in its historical, normative, and behavioral dimensions. Publication of such a book in the 1980s is itself testimony to the fact that the debate over activism and restraint has neither diminished or gone away. The reach of the volume is wide. "Rather than advancing one point of view," say the editors, "the book illuminates the fundamental issues in the debate over the Court's power by providing provocative and conflicting perspectives on those issues."[91] The hope is to offer fresh insight into an enduring problem. The editors succeed. Their project is the most all-inclusive resource on the subject to appear in a decade.[92]

Four of the essays can be briefly discussed here. The first is the introductory or conceptual essay to the volume, "Judicial Restraint on the Supreme Court," by Charles M. Lamb.[93] The term "restraint" denotes a collection of attitudes which comprise an ideal of what judging (especially constitutional judging) means in a democratic political system. Justices who advocate a limited role for the Court have done so for two basic reasons, Lamb finds. First, they believe that "judicial policymaking conflicts with the very essence of a democratic society." By its nature judicial power runs counter to popular power as expressed through the people's elected representatives. Second, they believe courts are simply not institutionally equipped to make wise policy. 'Compared to a legislature, a court lacks the staff, financial resources, and power to hold hearings with multiple witnesses presenting myriad facts and points of view."[94]

These reasons in turn have inspired several "maxims" of restraint. Accordingly, justices should: 1) "abide by the intent of the framers of the Constitution and statutes, and . . . not read their own personal preferences into law; pay deference to the legislative and executive branches of the federal and state governments by seldom overruling their policies, and then only on strictly 'legal' grounds;" 3) rely upon statutory rather than constitutional construction wherever possible;" 4) "accept for decision only 'cases and controversies' where the litigants have standing to sue in live issues;" 5) issue no advisory opinions; and, 6) answer no political questions.[95]

After extensive review of each, Lamb admits that the term "restraint" is both relative and subjective. The term does not easily lend itself to precision. "In some cases a particular justice may appear to be an advocate of restraint; in others he may not, . . . or may display in one opinion traits of both. . . ."[96] Even the injunction against judicial legislation offers no useful measurement. "Every Justice," observed Robert H. Jackson, "has been accused of legislating and every one has joined in that accusation of others."[97]

Conceptual weakness, however, does not lead Lamb to urge abandonment of the term. There is really nothing to put in its place. For all its problems, "restraint" is still a useful code word. Although many justices "have not practiced the restraint they preach," rejection of the concept would make it difficult to generalize about the work of the Court. In addition, the term has merit "because more than a glimmer of hope remains for its continued use. . . . There is a strong possibility that rigorous analyses and applications of the term can clarify the confusion. . . ."[98] Indeed, he sees this volume as a step in that direction.

In the normative section of the collection is a "defense" of judicial restraint and a "defense" of judicial activism. Lino A. Graglia authors the first, and Arthur S. Miller authors the latter. Graglia's is not a classic defense, but is at heart a bold and "back-to-basics" attack on activism. Indeed, his article strikes out against most recent (and some not so recent) manifestations of judicial power in America.[99] Even most of the Court's own apostles of judicial restraint--Justices such as Holmes, Frankfurter, and Harlan II--appear excessively activist by Graglia's yardstick.

"[W]e now have a system of government by unelected judges holding office for life," asserts Graglia. "If tyranny describes government in which the governors are not regularly subject to the control of the governed, this system qualifies for the description." Graglia views the present place of courts in the political system a radical departure from the framers' intentions. Moreover, the departure is unwelcome since the nation had been founded "on the revolutionary principle that the people are capable of governing themselves. . . ."[100]

Rule by judges, says Graglia, means that it is the judges who speak, not the Constitution. This truth is demonstrated by changing decisions that interpret a text that has undergone no relevant change. "In an intellectually respectable discipline, the possibility of reaching conflicting results on the basis of a single theory is taken as proof that the theory is invalid, but in constitutional law, as in astrology, this presents no serious difficulty."'[101] Graglia might well have quoted the argument Robert Yates made against ratification of the Constitution nearly two centuries ago, when he feared that the Supreme Court would be the "sleeper" in the new government. "This power in the judicial," wrote Yates, "will enable them [the judges] to mould the government, into almost any shape they please. . . . In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. . . ."[102]

Just as Yates anticipated in 1788, Graglia finds few practical limitations on judicial power today. Legal traditions do not really limit, asserts Graglia. Neither does he have confidence in the efficacy of time-honored checks such as constitutional amendment, standing, congressional control of jurisdiction, impeachment, or even presidential appointment. For varying reasons each fails to achieve popular control of the judiciary. "Judges have simply been too successful in inculcating the myth that an attack on them is an attack on the Constitution."[103] The people, in whom Graglia has much faith, have been duped and do not really know what is happening.

Just what constitutional place does Graglia believe judges should occupy? He accepts a system of judicial review where judges act "pursuant to fairly definite and specific constitutional provisions" and where judicial decisions can be more easily overturned by constitutional amendment or by simple legislative act.[104] There should be a reasonably clear conflict with a provision of the Constitution before judges could set aside a statute. For examples he points to the illustrations Chief Justice Marshall used in Marbury v. Madison,[105] each of which involved violation of a specific provision. Judicial review in such cases would entail "only a very limited intrusion on democracy. . . ." But Graglia is quick to reject Marshall's use of judicial review in Marbury itself. Marshall, he claims, "reached his conclusion that the statutory provision supposedly involved in Marbury was unconstitutional by first finding in the statute something that was not there, and then finding a logical inconsistency with the Constitution that did not exist."[106] Graglia does not address the point, but with provisions lacking specific meaning (the so-called "open-ended" phrases like "due process of law") presumably there would be no judicial review at all.

Arthur S. Miller's "In Defense of Judicial Activism" is as radical in one direction as Graglia's missive against judicial activism is in the other.[107] If one must regard activism and restraint only on the terms they propose, neither option may prove especially attractive to practicing jurists.

The principal deficiency in judicial activism, according to Miller, is its timidity. There should be more activism, not less. Yet, both Miller and Graglia agree on the extensive power the Court currently enjoys in the political system. While the latter sees this as a faithless departure from the intentions of the framers, the former sees the Court's influence as an opportunity. Still, Miller is not as quick to see the Court as all powerful. He admits that the justices "cannot long be out of step with the dominant political forces of the nation [108] So, he does not expect the Court to place barriers in the way of policies chosen by the rest of government to meet the pressing needs of the day. But this limitation only means that the justices must work harder at the challenges facing them. "Supreme Court activism," writes Miller, "is the one reed--the one frail reed--that enables Americans . . . to rise above the petty tyrannies of everyday life and see the world whole."[109] Justices "must not only see wrongs that should be corrected; they must also be ready to develop new remedies."[110]

Miller calls for a bold judicial future because of the evolution of American government. The nation is now beginning what Miller calls its fourth constitution, the Constitution of Control."'[111] "Crisis government" is becoming the norm, and the trend in America, as elsewhere, is toward increasingly authoritarian government. The Court can be a necessary check, providing "moral leadership to a populace that knows not where it is or where it is going. The developing consciousness of the country deserves an institution that can speak and act with miracle, mystery, and authority."[112] To avert disaster, hope lies therefore with the justices. "The Supreme Court may be a poor example of Plato's philosopher-kings, but we have no substitute."[113] National leadership, if there is to be any, must come from the justices. "With life tenure and time for reflection, the justices are in a better position than politicians to erect standards toward which the nation could aspire."[114] The Court should see itself as the "Delphic Oracle" of America.[115]

It does not trouble Miller that the Court is an undemocratic institution because the so-called democratic institutions of government--state and national--are not democratic either. "[I]t is idle, even mischievous" to label them so. Where Graglia has nearly boundless confidence in people to govern themselves through their elected representatives, Miller has almost none. Here lies the error in the thinking of those who have advocated restraint, claims Miller. Their mistake comes in "thinking . . . that the political process was sufficient to the need." The consequence of American pluralism is that the national interest becomes whatever the "groups with the greatest political clout" happen to choose."[116]

Rather than explore restraint and activism in the abstract, Harold J. Spaeth and Stuart H. Teger have undertaken a review of restraint as a driving force in Supreme Court decisions. Their "Activism and Restraint: A Cloak for the Justices' Policy Preferences" surveys the Burger Court's record on federal regulatory commissions, federalism, and access to the courts in the years 1969-1977.[117] With the commissions and the states, the justices are in a position to "defer" to the judgments of others. With cases involving access to the courts, voting to deny access is a way of leaving the resolution of certain disputes to other parts of the government.

They find that, at most, 'judicial deference is a sometime thing."[118] More important in explaining votes are the justices' approval or disapproval of the policies challenged in the cases. The authors do not express surprise at the results of their research. "If not to decide is to decide (and it surely is), then even the restrained jurist is promulgating policy decisions when he defers."[119] Do Americans really expect justices to submerge their political values "entirely to vague notions of judicial restraint?" "Justices, like most mere mortals, defer to the ideas and institutions of which they approve. We would not want them on the Supreme Court otherwise."[120] For Spaeth and Teger, concepts of activism and restraint are useful only in trying to maintain the myth that judges find, but do not make, law. They doubt whether many still accept that ideal explanation as truth, and wonder whether it has not "now gone the way of the flat earth and phlogiston."[121] The authors do not take time to pursue the question their findings raise: what then becomes the justification for judicial review?

In his significant monograph The Supreme Court and Constitutional Democracy,[122] John Argots examines this question and one closely akin to it: the proper place of the Court in the American political system. Confronted with the fact of judicial power, Graglia retreats and Miller advances to one of two extremes. Agresto places positions such as theirs in a historical context. "The fear of judicial autocracy led Jefferson to minimize the potential value of the Court almost to insignificance," he writes, "to reduce its effective place within the scheme of checks and balances. The opposing and more prevalent view begins with the notion of judicial independence" and removes the Court from that scheme. But the latter view "finds itself without defenses against the dangers and the reality of judicial imperialism."[123]

Agresto adopts a middle position which begins with the fact of an active judiciary. And this is a judiciary that has been active in recent years in a way previously unknown. The Court is not just a nay-sayer to other people's policies but is itself "legislative in the fullest sense: creating categories of expectation and entitlement, ordering the expenditures of great sums of revenue, creating new rights and with them new sanctions."[124] This state of affairs he might not prefer, but Agresto is not launching an anti-Court crusade. Rather, his thesis is that "constitutional interpretation is not and was never intended to be solely within the province of the Court. . . ." He would rejuvenate the Madisonian system of checks and balances, making the Court not just one of the "checks," but also a "check" subject to "balances." "We should see the American political system not as a pyramid, with the Court at the top as the ultimate authority," he suggests, "but rather as an interlocking system of mutual oversight, mutual checking, and combined interpretation."[125] Recognizing the importance of an active judiciary, Agresto believes that "a Court that is both checked and active may well be the optimal constitutional solution." If judicial supremacy is intolerable, thorough-going restraint is a mistake.[126]

How then does one accomplish this "solution?" The first step is a rejection of the doctrine of judicial finality--the view that the Court's interpretation of the Constitution is the "last word." The second step is recognition that several presumed restraints on the Court are sometimes unwise and usually not very workable. Correcting the Court by amending the Constitution is not only exceedingly difficult, but "makes the Constitution the shield and security for exactly that kind of autonomous political activity we sought to protect ourselves against."[127] Neither are appeals to self-restraint effective. Generally, the call to self-denial has been in vain, and besides, the framers did not intend the several branches to check themselves. Agresto also opposes quick resort to impeachment or routine change in the number of justices. Each carries with it "serious political liabilities" which outweigh possible benefits. Also not recommended is Congressional withdrawal of jurisdiction since that would foreclose further inquiry into the constitutional legitimacy of particular legislative acts.[128] Besides, these are blunt and heavy weapons, not easily wielded for routine political conflict.

The third step comes in accepting the propriety of a dialogue between the Court and the rest of the political system. Agresto stresses Congress' "unquestioned ability to rewrite voided legislation in order to pass judicial scrutiny."[129] Agresto believes there is a respected tradition behind this view. As Corwin said, "[W]hile the Court can and must decide cases according to its own independent view of the Constitution, it does not in so doing fix the Constitution for an indefinite future."[130] This was Lincoln's position in the wake of Dred Scott: "Were I in Congress and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should."[131]

Agresto predicts that such a dialogue would be relatively easy and might well prove effective. At the very least, rewriting rejected statutes and developing ways to limit the impact of a judicial holding would make it clear that a large body of opinion believed the Court to be in error in its reading of the Constitution. Compared to many proposals for "curbing the Court," Agresto 's is modest. It would mesh judicial power with the natural tensions the Constitution contains, to gain the full benefit of popular government under higher law.

Throughout the literature surveyed here, each author attests to the fact that the Court is not ignored. Their efforts demonstrate the importance of the Court in the political system and point to continued interest in what the Court does. If the Court continues to engage other political institutions in dialogue, there is another important dialogue as well--between the Court and its students.


Endnotes

1 Listed alphabetically below are the books surveyed in this article.
(a) Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court ( New York: Oxford University Press, 2nd Ed., 1985), Pp. xiv, 430.
(b) Agresto, John. The Supreme Court and Constitutional Democracy (Ithaca, N.Y.: Cornell University Press, 1984). Pp. 182.
(c) Bartee, Alice Fleetwood, Cases Lost, Causes Won (New York: St. Martin's Press, 1984), Pp. xiii, 207.
(d) Blandford, Linda A. and Patricia Russell Evans, eds. Supreme Court of the United States 1789-1980: An Index to Opinions Arranged by Justice (Millwood, N.Y.: Kraus International Publications, 1983), 2 vols. Pp. xxv, 1126, plus appendices.
(e) Friendly, Fred W. and Martha J. H. Elliott. The Constitution: That Delicate Balance (New York: Random House, 1984), Pp. xii, 339.
(f) Halpern, Stephen C. and Charles M. Lamb, eds. Supreme Court Activism and Restraint (Lexington, Mass.: D. C. Heath, 1982), Pp. xi, 436.
(g) Kurland, Philip B., Gerhard Casper, and Dennis J. Hutchinson, eds. 1983 The Supreme Court Review (Chicago: University of Chicago Press, 1984). Pp. viii. 626.
(h) Provine, Doris Marie. Case Selection in the United States Supreme Court (Chicago: University of Chicago Press, 1980). Pp. ix., 214.
(i) Silverstein, Mark. Constitutional Faiths; Felix Frankfurter, Hugo Black and the Process of Judicial Decision Making (Ithica, N.Y.: Cornell University Press, 1984). Pp. 234.
(j) Strum, Philippa. Louis D. Brandeis, Justice for the People (Cambridge, Mass.: Harvard University Press , 1984). Pp. xv, 508.
2 T. Arnold, The Symbols of Government 196 (1935).
3 Letter to Edmund Randolph (Sept. 27, 1789), 10 The Writings of George Washington 24 (J. Sparks, ed., 1834).
4 Letter to N. P. Trist (Dec. 1831). 9 The Writings of James Madison 476 (G. Hunt, ed., 1910).
5 Arnold, supra n. 2, at 50.
6 Letter from Stone to T. R. Powell (Nov. 15, 1935). Quoted in A. Mason, Harlan Fiske Stone 398 (1956).
7 Abraham, supra n. 1.
8 Id. at vii.
9 Id. at 7.
10 Id. at 5.
11 Remarks of May 19, 1983. Quoted in id. at 7.
12 Quoted in Time Magazine, 24 (May 23, 1969).
13 Quoted in A. Mason, W. Beaney and D. Stephenson, American Constitutional Law 12 (7th ed., 1983).
14 For Abraham, "greatness" on the bench was best expressed by Blaustein and Mersky: "Scholarship; legal learning and analytical powers; craftsmanship and technique, wide general knowledge and learning; character, more integrity and impartiality; diligence and industry; the ability to express oneself orally with clarity, logic, and compelling force; openness to change, courage to take unpopular decisions; dedication to the Court as an institution and to the office of Supreme Court justice; ability to carry a proportionate share of the Court's responsibility in opinion writing; and finally, the quality of statemanship," A. Blaustein and R. Mersky, The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States 50-51, n. 11 (1978). With these criteria, the rub comes not from knowing what they are but in finding individuals who will probably live up to them.
15 Abraham, supra n. 1, at 11.
16 Strum, supra n. 1.
17 Frankfurter, "Mr. Justice Brandeis and the Constitution," 45 Harv. L. Rev. 33, 33 (1931).
18 The list includes: Leonard Bakers, Brandeis and Frankfurter: A Duel Biography (1984); Nelson Lloyd Dawson, Louis D. Brandeis, Felix Frankfurter, and the New Deal (1980); Bruce Allen Murphy, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982); Lewis J. Paper, Brandeis (1983); and Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (1981).
19 M. Urofsky and D. Levy, eds. Letters of Louis D. Brandeis, 5 vols. (1971-1978).
20 A. Mason, Brandeis: A Free Man's Life (1946).
21 A. Todd, Justice on Trial: The Case of Louis D. Brandeis (1964). Brandeis' extra-judicial activities were of course the focus of part of Bruce Allen Murphy's controversial The Brandeis/Frankfurter Connection, supra n. 18. Given the wealth and range of citations in Strum's volume, it is striking that there is apparently none to Murphy's book. She does make reference to another recent study. Nelson Lloyd Dawson's Louis D. Brandeis, Felix Frankfurter, and the New Deal, supra n. 18.
22 Strum, supra n. 1 at 409, 410.
23 His friend Professor Frankfurter made similar use of the memorandum during the years on the Court, Frankfurter was sworn in as a Justice on January 30, 1939, just before Brandeis retired on February 13.
24 Strum, supra n. 1, at 371.
25 Supra n. 1. Silverstein's selection of a title
26 Frankfurter was born in Austria in 1882; Black was born in Alabama in 1886.
27 See W. Mendelson, Justices Black and Frankfurter: Conflict in the Court (1961).
28 Silverstein, supra n. 1. at 20.
29 Id. at 87.
30 Id. at 16.
31 Minersville School District v. Gobitis, 310 U.S. 586 (1940); Dennis v. United States, 341 U.S. 494 (1951).
32 McCollum v. Board of Educ., 333 U.S. 203 (1948) (concurring opinion); Zorach v. Clauson, 343 U.S. 306 (1952) (dissenting opinion).
33 Writing to Jefferson on Oct. 17, 1788, Madison said that "the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. . . ." Quoted in Mason, Beaney, and Stephenson, supra n. 13 at 503.
34 302 U.S. 319 (1937).
35 332 U.S. 46 (1947).
36 381 U.S. 479 (1965).
37 Friendly and Elliott, supra n. 1.
38 W. Murphy and J. Tanenhaus, The Study of Public Law47 (1972).
39 32 U.S. (7 Pet.) 243 (1833).
40 See A. Schlesinger, Jr., The Imperial Presidency 56 (1973).
41 166 U.S. 226 (1897).
42 Friendly and Elliott, supra n. 1, viii.
43 Id.
44 F. Frankfurter, Law and Politics 30 (E. F. Prichard and A. MacLeish, eds., (1939).
45 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 316 (1819).
46 The Federalist, No. 51.
47 On March 15, 1789, Jefferson wrote Madison: "In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary." When placing the proposed Bill of Rights before the House of Representatives on June 8, 1789, Madison said: "If they [the amendments] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bullwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights." Quoted in Mason, Beaney, Stephenson, supra n. 13, at 504-505.
48 Bartee, supra n. 1.
49 Systems theory was first used generally to analyze politics and government in David Easton's The Political System(1953) and his "An Approach to the Analysis of Political Systems," in 9 World Politics 383 (1957), even though the term "Political system" is considerably older than systems theory itself. Systems theory offers a framework for selecting, organizing, and analyzing political data, and Bartee thinks of the judicial process as a system itself. Systems theory suggests a model of why things happen and, like any model, is an abstraction from reality. The utility of any such model comes only of course from increasing our understanding of the subject that is being studied and in advancing other research. Walter F. Murphy's Elements of Judicial Strategy (1964) is an early example of systems theory as applied to courts and judges.
50 Bartee, supra n. 1, at 7.
51 249 U.S. 204 (1919).
52 310 U.S. 586 (1941).
53 Bartee, supra n. 1, at 60, 69.
54 388 U.S. 307 (1967).
55 Bartee, supra n. 1, at 135.
56 310 U.S. 530 (1940).
57 309 U.S. 277 (1940).
58 Bartee, supra n. 1, at 159.
59 United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966).
60 Bartee, supra n. 1, at 189.
61 Kurland, Casper, and Hutchinson, supra n. 1.
62 Id. at 83-123.
63 Id. at. 86.
64 Committee for Public Educ. v. Nyquist, 413 U.S. 756, 820 (1973 (dissenting opinion).
65 Kurland, Casper and Hutchinson, supra n. 1, at 105.
66 Id. at 110.
67 Id. at 113.
68 Professor Smith may know that he is not the first to inquire into the underlying views of the Justices on religion. In the papers of the first Justice Harlan in the Library of Congress, there is a letter to Harlan from a J. H. McCullough of The American Sunday-School Union in Henderson, Kentucky, dated August 5, 1891. "Some infidels through this section boldly assert 'that every judge now on the bench of the U.S. Supreme Court is either an atheist or infidel, all deny the truth of the Christian religion.' I have denied this change as a slander and a lie. Will you please inform me as far as you may be able. How many judges of the Supreme Court are professing Christians?" In Justice Harlan's handwriting are notes for a reply: "Assured that all were communicants in a Christian church--that if I was mistaken in that I was not mistaken in saying that no one of them is an infidel or atheist & that all believe the truths that are commonly regarded as fundamental in the Christian religion."
69 393 U.S. 97 (1968).
70 Kurland, Casper, and Hutchinson, supra n. 1, at. 114.
71 Id. at 117.
72 Id. at 118.
73 Id. at 120.
74 Provine, supra n. 1.
75 It was Rule 19 when Provine did her research. See 28 U.S.C. Appendix (1982 ed.).
76 Burton's papers were opened to the public after his death in 1965. Provine accurately points out that the Morrison Waite Papers at the Library of Congress contain Chief Justice Waite's docket books, which have detailed voting records. Waite was on the Court from 1874 until 1888, long before the Judges' Bill of 1925. Stephenson, "The Chief Justice as Leader: The case of Morrison Remick Waite,' 14 Wm. & Mary L. Rev. 899 (1973).
77 Provine, supra n. a, at 4.
78 Id. at 6. Published research goes back well over two decades. See, e.g., G. Shubert, Quantitative Analysis of Judicial Behavior (1959) (Chapter 4, especially, on "The Certiorari Game"); Tanenhaus et al., "The Supreme Court's Certiorari Jurisdiction: Cue Theory," in G. Schubert, ed., Judicial Decision Making (1963); Ulmer et al., "The Decision to Grant or Deny Certiorari: Further Consideration of Cue Theory," 7 Law and Society Review 637 (1972); Brenner, "The New Certiorari Game," 41 Journal of Politics 649 (1979).
79 Provine, supra n. 1, at 6.
80 Id. at 7.
81 Id. at 86-88.
82 Id. at 175.
83 Id. at 176.
84 Id. at 7.
85 Pritchett, "The Development of Judicial Research," in J. Grossman and J. Tanenhaus, eds., Frontiers of Judicial Research 42 (1969).
86 Blandford and Evans, supra n. 1.87 Blandford and Evans, supra n. 1, xxi. The exception comes with the standard opinion on the death penalty used jointly by Justices Brennan and Marshall where the Court denies review in capital case. These recurring opinions are marked accordingly.
88 D. Morgan, Justice William Johnson: The First Dissenter (1954).
89 2 U.S. (2 Dall.) 419 (1793).
90 Halpern and Lamb, supra n. 1.
91 Id. at xi.
92 See D. Forte, The Supreme Court in American Politics: Judicial Activism v. Judicial Restraint (1972).
93 Halpern and Lamb, supra n. 1, at 7-36.
94 Id. at 9, 12.
95 Id. at 15-21.
96 Id. at 22.
97 R. Jackson, The Supreme Court in the American System of Government 80 (1955). Even Justice Douglas, rarely counted in the ranks of the judicially modest, could use the language of restraint. "we do not sit as a super-legislature to determine the wisdom, need and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
98 Halpern and Lamb, supra n. 1, at 28.
99 Id. at 135-166. The views in the chapter are generally consistent with the author's frequently cited critique of judicial policy-making with respect to integration of the public schools. L. Graglia, Disaster by Decree: The Supreme Court's Decisions on Race and Schools (1976).
100 Halpern and Lamb, supra n. 1, at 135.
101 Id. at 140.
102 Quoted in Mason, Beaney and Stephenson American Constitutional Law 44 (7th ed., 1983).
103 Halpern and Lamb, supra n. 1, at 154.
104 Id. at 156.
105 5 U.S. (1 Cranch) 137 (1803).
106 Halpern and Lamb, supra n. 1, at 157.
107 Id. at 167-199.
108 Id. at 169.
109 Id. at 192.
110 Id. at 188.
111 Id. at 168.
112 Id. at 168. According to Miller, the Articles of Confederation constituted the first. The "Constitution of Limitations" was the second, from 1789 to 1937. The New Deal brought the third, the "Constitution of Powers," as the late Professor Edward Corwin said. Now, the fourth, the "Constitution of Control" is overlaying the third.
113 Id. at 192.
114 Id. at 184.
115 Id. at 188.
116 Id. at 178-182.
117 Id. at 277-301.
118 Id. at 296.
119 Id. at 297.
120 Id.
121 Id.
122 Agressto, supra n. 1.
123 Id. at 101-102.
124 Id. at 11.
125 Id. at 10,
126 Id. at 134.
127 Id. at 108.
128 Id. at 121.
129 Id. at 126.
130 E. Corwin, Court Over Constitution 74 (1938).
131 2 A. Lincoln, Collected Works 495 (Basler ed.) (1953).