In his undelivered Godkin Lectures, published posthumously in 1955 under the title The Supreme Court in the American System of Government, Justice Robert H. Jackson commented that the United States Supreme Court “functions less as one deliberative body than as nine.” What Jackson meant was that the nine Justices, overburdened with work, were drastically limited in the time they could spend in formal conference, deliberating over argued cases. As a result, he explained, each Justice works “largely in isolation except as he chooses to seek consultation with others. These working methods tend to cultivate a highly individualistic rather than a group viewpoint.” Jackson personally deplored judicial individuality insofar as it led to the filing of a growing number of dissents. Today it has become apparent that the Supreme Court not only functions as nine deliberative bodies, but that it is nine tribunals in one: an aggregation of nine appellate judges bound together only in the formal sense that, in most instances, at least five of them must agree on a particular result.
That this would come to pass, though clearly foreshadowed long before 1955, was not then as evident as it is now. Only two years earlier, California’s Governor, Earl Warren, had become Chief Justice amid the hopes of many that he would bring unity to the nation’s highest court. At first it seemed as if Warren, an immensely popular politician, blessed with considerable intelligence and a genial personality, might succeed. The landmark decision in the controversial school segregation case of 1954 was unanimous; all nine Justices united in Warren’s opinion. During the next two years the Justices struck out boldly in a number of other controversial areas, with seemingly a fair amount of unanimity. Reversing the timid and restrained course which had characterized the previous Vinson Court, the Warren Court acquired an almost overnight reputation as a guardian of civil liberties. In a rapid series of decisions, it held that state anti-sedition laws had been superseded by the federal Smith Act (thereby ending prosecution of an acknowledged Communist leader); that the federal government’s loyalty-security program did not extend to non-sensitive employees; that alleged criminals, on trial for violations of federal law, had a right to consult the confidential reports which formed part of the prosecution’s case; that Congressional investigating committees might operate only in fulfillment of a legislative purpose and had to inform witnesses carefully of the relevance of questions they were being asked; that the Smith Act did not forbid mere theoretical advocacy of the violent overthrow of the United States government; and that New Hampshire, in a widely publicized case, had unjustly convicted a socialist who refused to cooperate with the state Attorney General’s investigation of subversive activities. Other decisions gave broad scope to the protections of the Fifth Amendment and made clear the Court’s insistence on high standards of procedural fairness in criminal trials, both in federal and state courts.
As a matter of actual fact, the early Warren Court was scarcely a model of unity, though in contrast to the current pattern of 5-to-4 rulings, many of the early decisions did command respectable majorities of six or seven judges. Moreover, while the results seemed clear enough (e.g., the freeing of a Communist party leader or the reinstatement of a dismissed security risk), the grounds for decision were really quite narrow and exceedingly complex. Nevertheless, the total effect of the decisions was to create a fairly sharp image of a libertarian Court helping to draw the curtains on the McCarthy era.
Hostile reactions of groups alienated by the Court’s sudden activity contributed to the “clarity” of this image. Southern racists and professional patriots, as well as sincere advocates of a rigorous loyalty-security program and state or local officials concerned with law enforcement, all raised an uproar reminiscent of New Deal attacks on the pre-1937 Court. A manifesto signed by virtually all Southern Congressmen denied the legality of the school segregation decision; Congress came within a few votes of reversing some of the offending loyalty-security rulings; the 1958 Conference of State Chief Justices censured the Supreme Court for failing to exercise sufficient self-restraint; and the American Bar Association passed a report endorsing Congressional revision of decisions which it pronounced “unsound.”
Although the pseudo-conspirators of the John Birch Society propose to save the Republic by impeaching Chief Justice Warren, and Southern politicians are still getting political mileage out of ringing denunciations of the Court, the worst of the furor has obviously passed—possibly because it has, indeed, had some effect. The Warren Court, which in 1956 and 1957 seemed determined to wield a civil liberties sword at every opportunity, has since used the sword sparingly. Negroes pressing claims to political and legal equality continue to fare well, but even in this area judicial discord is more apparent than before. For example, two rulings made last spring found discrimination to be unconstitutional in interstate commerce and in the operation of a restaurant located in a state-controlled parking authority, but some of the Justices dissented on the ground that the constitutional questions were not properly before the Court. Equally noteworthy is the fact that the Court has yet to pass on the legality of the pro-segregation pupil placement laws which form the bulwark of the so-called moderate Southern resistance to the school integration decrees.
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It is, however, a series of cases raising loyalty-security questions and decided during the past three years which chronicle the Court’s current “chaos” and its newfound caution—a caution that happens not to be shared by Chief Justice Warren and Justices Black, Douglas, and Brennan, its outspoken dissenters. Five-to-four votes have decided that the House Un-American Activities Committee (HUAC) can investigate subversion in the field of education, that it can use Congress’ contempt power against uncooperative witnesses, and that it is not barred from interrogating those who oppose its existence. Similar divisions sustained New Hampshire’s power to punish the pacifist, Dr. Willard Uphaus, for his refusal to cooperate with the state’s loyalty-investigating committee, and sustained California’s right to dismiss summarily an employee who refused to answer certain questions put to him by HUAC. Finally, in two long-litigated cases of major importance decided last term by the familiar 5-to-4 breakdown, the majority sustained the registration requirements of the Subversive Activities Control Act as applied to the Communist party, and also the clause of the Smith Act punishing active membership in organizations that advocate violent overthrow of the government.
While these decisions have served to mute external criticism of the Court—Congress, significantly, is no longer agitated over the issue of reversing its decisions—the Justices themselves have become increasingly divided and critical of each other. As late as 1936, at the height of the Court’s resistance to Franklin Roosevelt’s New Deal and at a time when the old conservative majority was in sharp and obvious conflict with the minority of Brandeis, Stone, and Cardozo, only one case in four failed to be decided by a unanimous nine-man majority. Today, dissent has become so common that it is the unanimously decided case which attracts comment. Of 124 opinions given in the 1960-61 term, only one out of five enlisted the unqualified support of all nine judges; twenty-eight cases were decided by a bare majority of 5-to-4.
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Statistics alone cannot convey the extent of internal division. Almost all of last term’s really significant decisions—not only those involving loyalty-security questions—spawned a brood of majority, concurring, and dissenting opinions. The cases testing the constitutionality of the Sunday blue laws that exist in various states resulted in six differing positions which took 127 pages to explain. The twin cases involving the relationship of members to compulsory unions and to bar associations which spend dues for political purposes divided the Justices so badly that they failed to reach a clear-cut decision. One Justice, Hugo Black, was led to confess that “I do not believe that either the bench, the bar, or the litigants will know what has been decided in this case—certainly I do not.”
Not surprisingly, these internal divisions are reflected in strained relations among the Court’s members. Even the most casual observer soon notices that “the brethren” are indeed typical of a large family: constantly squabbling and often very, very angry. To be sure, friction among the nine individualistic men forced into close and constant contact is neither unusual nor recent. In the post-Civil War period Justice Stephen J. Field, stubborn, self-righteous, and quick to take offense, was a perpetual trial to his more easygoing associates. During the 1920’s and 1930’s, Justice McReynolds, an unabashed anti-Semite, refused to observe even the minimum courtesies toward Justice Brandeis. But what is unusual today is the frequency of cases in which the Justices trade bitter, sometimes sarcastic, charges. Majority decisions are dismissed by the dissenters as sure to cause “increasing bewilderment” in lower courts and are denounced for relying upon “unheard of” jurisprudential rules, “penurious” legal tests, and “specious” reasoning.
Such dissents can sting, provoking intense ill-feeling. Twice last spring, within four weeks, Chief Justice Warren took public exception to some extemporaneous dissenting remarks made by Justice Frankfurter during the Court’s semi-monthly announcement of decisions. Piqued at one 5-to-4 ruling, which overturned the death sentence of a man whom three separate juries had convicted, Frankfurter accused the majority of indefensibly “plucking out” a harmless prosecutor’s error from the trial record and suggested that judges are apt to find in the record “what the mind is looking for.” In an impromptu—and quite extraordinary—rebuttal, the Chief Justice charged Frankfurter with “degrading the Court.”
Yet, as already suggested, Warren himself and Justices Black, Douglas, and Brennan, who commonly stand together as the Court’s ultra-libertarian wing, rarely shrink from using hyperbole and innuendo when they are forced to dissent. Recording their displeasure with Court decisions which upheld the investigatory powers of HUAC as well as the constitutionality of laws regulating the Communist party and requiring the licensing of motion pictures, they have accused the majority of adopting constitutional doctrines which are “steadily sacrificing individual freedom of religion, speech, press, assembly and petition to governmental control” and which “legalize” guilt by association by borrowing “from the totalitarian philosophy.”
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Behind these strident words and chronic disagreements lie some fundamental philosophical cleavages; though found in the opinions of all nine judges, they are most clearly revealed in the contrasting judicial work of Justices Black and Frankfurter, the Warren Court’s intellectual leaders. This contrast is the theme of an excellent little book recently written by Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court1 Black emerges from this study as an unreconstructed New Deal idealist who favors the unrestrained use of judicial power to further the values he cherishes: racial equality, freedom of speech and of political association, and economic security for all. At the center of his constitutional universe stands the individual and, with a tenacity born of deep conviction, Justice Black is determined he shall be free—whether those who would impose restraints are Congressional investigating committees, inquisitive state Attorney Generals, or trade unions that spend membership dues for political purposes.
Justice Frankfurter, on the other hand, is a pragmatist, an introspective judge acutely conscious of the limitations of judicial power. On occasion he will sanction the use of the Court’s authority to safeguard individual rights, but his general position is one of self-restraint. Frankfurter is essentially a majoritarian, a man who believes that the democratic process must be given its head. The Court, he insists, is neither qualified to block the policy choices of a political majority—be it a legislative decision to establish a social security program or to investigate political disloyalty—nor would it be desirable were it able to do so. Furthermore, he attaches great importance to the fact that the American system of government is federal; he reaches decisions by a tortured route that leads him to worry the proper role of a judiciary in a democracy and to examine carefully the relationship between federal and state power.
A 1959 obscenity case illustrates the judicial and philosophical conflict between the two men; it emphasizes as well how easily the Warren Court splinters into opposing factions when faced with tough questions. Los Angeles passed an ordinance making it unlawful for a bookstore proprietor to stock “any obscene or indecent” writings. Eleazar Smith, a book-seller, was convicted of violating the ordinance by having in his possession a book found upon judicial investigation to be obscene. In the decision of the Supreme Court, Justice Brennan, speaking for four of his associates, reversed the conviction because the ordinance made booksellers liable whether or not they had knowledge of a book’s contents. Brennan noted that the absence of guilty knowledge does not excuse distributors of impure foods and drugs, but he declared that “the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the book-seller.” To do so, the majority ruled, would restrict book sales to books inspected by the dealer and thus would limit the distribution not only of obscene but also of constitutionally protected literature.
Four Justices wrote concurring opinions, but our interest here is in those of Black and Frankfurter. Unlike the rest of the majority, which decided the case on narrow grounds and conceded in its argument the municipality’s right to censor obscene publications, Black flatly rejected the idea that the free speech guarantee of the First Amendment does not embrace obscenity. For Black there are no overriding public interests which justify even the slightest abridgement of what he defines as “speech.” In words that have become his hallmark: “[The First] Amendment provides, in simple words, that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ I read ‘no law abridging’ to mean no law abridging.”
So absolute a command, Black argues, requires absolute implementation and therefore neither the federal government nor the states (the Court has long held that the Constitution’s free speech guarantees also apply to the states) may restrain the freedom to speak and write. Any other course—that is, the Frankfurter course which currently guides the Court’s decisions—leads to an undesirable case-by-case approach; it favors “court-made” law which reflects the Justices’ prejudices as they react intuitively to an endless variety of particular and individual situations. (With seeming naivety, Black asks us to believe that an absolutist approach to civil liberties problems eliminates personal preferences.) Only his interpretation, Black claims, strips away the uncertainties which accompany judicial balancing of the public and private interest; such balancing, in fact, poses an unreal antithesis because the public interest requires unlimited freedom for private expression.
Contrary to Black, Frankfurter believes that certain utterances—e.g., obscene writings or seditious exhortations—are not “speech” within the meaning of the First Amendment, and thus they may not claim its protections. Explicitly rejecting his colleague’s rather strained attempt to enlist Jefferson and Madison on the side of the ultra-libertarian cause, he writes that it is incorrect to attribute to these men “a doctrinaire absolutism that would bar legal restriction against obscenity as a denial of free speech.” (This particular assertion prompted Black to insert into his opinion a 630-word footnote dedicated to the proposition that Jefferson and Madison “may have held the view that the concurring opinion terms ‘doctrinaire absolutism.’”) On the other hand, Frankfurter fully admits “the vital role of free speech” in a democracy, agreeing with the majority that booksellers would have to have guilty knowledge of the contents of their wares; there is, indeed, an important difference in the states’ powers “to regulate what feeds the belly and what feeds the brain.” Frankfurter’s dissatisfaction with the majority opinion derives from its vagueness as to precisely what constitutes sufficient guilty knowledge. The factor of guilty knowledge, he is at pains to stress, cannot nullify the states’ practical powers to regulate obscenity. Instead, he would allow those charged with violating obscenity laws to enlighten trial courts as to prevailing literary and moral community standards by the use of qualified experts. In Frankfurter’s view, “contemporary standards” are the test of obscenity—there is a great difference between what was considered obscene in the 1860’s as compared with the standards of the 1960’s, and to deny expert testimony (as the California courts did) denies due process of law.
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This case, quite apart from the intriguing questions it thrusts up in its own right, dramatizes the Black-Frankfurter conflict quite clearly. On the one side stands Justice Black, championing the cause of the underdog individual, insisting that the Constitution enshrines absolute liberties beyond all governmental control, and warning that any less firm a position inevitably leads to the destruction of democracy. The case of Eleazar Smith, he writes, puts us “on the way to national censorship,” a “deadly enemy of freedom and progress,” and encourages the Court to become “a Supreme Board of Censors.” On the other side stands Justice Frankfurter, anxious lest the Court fetter the powers of government and watchful of the states’ prerogatives. Convinced that in this world there are no absolutes, he sees the Court’s role as one of balancing a myriad of interests. Above all, he operates under the assumption that in a democracy an oligarchical Court should exercise its powers with caution and with due regard for the popularly elected branches of government.
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Such, at the risk of oversimplification, is the nature of the intellectual conflict dividing the Warren Court. And yet, there is really nothing very new in all this. During the 1870’s and 1880’s, Justice Field, determined to protect corporate property from governmental regulation, authored some stinging dissents in rebuttal to a majority which took a narrow view of the judiciary’s role and allowed wide scope to legislative authorities. Later, the famous triumvirate of Holmes, Brandeis, and Stone fought hard for the view (which has predominated since the New Deal upheaval of 1937) that legislatures, not courts, are the proper agencies to pass on the desirability of economic regulation. What gives the Black-Frankfurter conflict its distinctive intensity and leads the Court to divide with such unparalleled regularity are a number of underlying causes, products of American history since the beginning of World War II.
In the pre-1940 period the major issues which dominated the Court’s attention revolved around a basically simple conflict: economic regulation versus no economic regulation. The New Deal conclusively settled this dispute in favor of the former, and consequently bequeathed to the Court a host of more refined, more subtle problems. It is one thing to agree that the federal government may impose minimum wages on workers engaged in interstate commerce; it is quite another to define the scope of interstate commerce, to decide, for instance, whether a window cleaner servicing a building that houses some offices whose businesses are of an interstate nature, is covered by the provisions of the Fair Labor Standards Act. Many of these new complexities are also heightened by ambiguities and inconsistencies within the regulatory statutes themselves.
In addition, several factors—the rising Negro pressure for full equality, the growth of organized crime, and the loyalty-security programs bred by the cold war—have combined to produce a situation in which individual liberty problems have become the Court’s main concern. These problems are by definition hard to solve, for they frequently present a clash between two values both of which, on their face, deserve constitutional protection.
How does one choose, as the modern Court has had to, between the leader of a racist organization convicted of defaming the Negro race under a group libel law and the state which seeks to end discrimination against a persecuted minority (freedom of speech versus the dignity of individuals); between a religious group’s desire to proselytize and a community ordinance intended to protect homeowners from the annoyances of doorbell-ringing salesmen (freedom of speech and religion versus the right to privacy); between the interest of workingmen in effective trade unions and a dissident worker’s unwillingness to help finance the dissemination of political views he opposes (workers’ right to collective bargaining versus individual political freedom)? Similarly, how does one measure the fairness of internal security procedures (e.g., whether alleged security risks can cross-examine secret informers), or determine the extent to which traditional liberties can be curtailed in rooting out foreign-controlled subversives without sacrificing the essence of freedom?
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Given the difficult cases regularly before the Court and the underlying causes which militate against any easy conclusions, it is hardly surprising, then, to find the Warren Court wracked by concurring and dissenting opinions. Nevertheless, that the Court has become “nine deliberative bodies” disturbs many informed and not-so-informed commentators. One of the latter, Life, castigates the Warren Court Justices for producing an “inflated number” of separate opinions “which seem to bespeak an inflation of the judicial ego.” And a writer for the Newspaper Enterprise Association suggests that 5-to-4 decisions indicate that the Justices are unsure of what they are doing; he dismisses recent opinions as “confusing” and “practically unintelligible.”
These criticisms, however, are but popularized versions of prominent writings in professional law journals. Professor Philip B. Kurland of the University of Chicago Law School blames the Court for inviting the attacks of right-wing groups by creating confusion about its role: too much conflict between activists (like Black) and limitationists (like Frankfurter), he argues, gives the court an appearance of “institutional schizophrenia.” From Harvard’s prestigious Law School comes a lengthy indictment by Professor Henry M. Hart, Jr. This rambling critique of the Warren Court’s internal procedures laments what Hart describes as the Justices’ habit of turning dissents into personal position papers. “Relatively minor questions,” he says, “which the Court as an institution ought to be capable of resolving provoke disagreement. . . . Opinions often have the air rather of a debating contest than of a joint and impersonal effort to explore and illumine the issues.”
Other variants of these criticisms exist, but they tend to make the same points:
- the proliferation of dissents puzzles the public, which thus cannot understand the meaning of Court decisions;
- in consequence, the Court’s image as “Voice of the Law” is weakened and its influence reduced (“disunity cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends,” as one critic put it);
- similarly, a steady diet of concurring and dissenting opinions reveals uncertainty in our law. In the words of Professor Carl B. Swisher, an eminent political historian, there is a deplorable lack of “evidence of that settledness and tendency toward uniformity of attitude which we might desire with respect to our body of constitutional law and its foremost institutional interpreter.”
These friendly critics—although outspoken, all are sympathetic with the Court’s difficulties—prescribe a remedy of institutional self-restraint. Like the proverbial English civil servant, their ideal Supreme Court Justice would have a passion for anonymity. One line of thought, led by Professor Hart, suggests that the Justices limit the number of cases which they hear, in order to allow more time for the “maturing” of “collective thought,” thereby reducing the frequency of frivolous dissent and improving the craftsmanship of opinions. A second, related, suggestion is that the Justices take a postgraduate course in humility and willingly limit their dissenting opinions to really “important” disagreements. In other words, by an act of collective will the Justices, who in deciding some of our society’s most difficult problems have shown themselves to be in sharp conflict, are to take the pledge—swearing, if not complete at least partial, abstinence from the heady intoxicant of dissent.
But however well intentioned, the friendly critics are unlikely to succeed in their campaign to direct the Supreme Court onto a path labeled “public understanding,” “unity of the Justices,” and “uniformity of law.” For one thing, the general public knows little and cares less about the Court. Its interest is of a most sporadic kind and focuses only on the actual results—not on the judicial craftsmanship that went into them and not on the number of concurrences and dissents. Undoubtedly the two most newsworthy rulings of the last decade were the steel seizure case of 1951, which ordered President Truman to return the nation’s steel mills back to their private owners, and the school segregation case of 1954, which declared the illegality of state-supported racial segregation. In neither case did the craftsmanship of the accompanying opinions or the extent of intra-Court agreement make any difference to that amorphous deity, public opinion. Prior to the steel seizure ruling, David Lawrence’s U. S. News & World Report, which certainly speaks for one segment of public opinion, spent weeks venting its anger at Truman’s seizure. (A typical feature article was entitled “Can U. S. Have a Dictator?”) That the 6-to-3 decision against the seizure came from a badly divided tribunal which issued six separate opinions on the majority side alone did not seem to bother Lawrence. Bold black type hailed the decision as meaning: “no ‘strong man’ for U. S. Any Would-Be Dictator Must Answer to Courts.” Apart from academicians, no one had much to say about the Court’s fragmentation.
By contrast, the school segregation ruling, a 9-to-0 decision, has proven to be one of the most controversial in history. White Southerners have not been impressed by this unanimity, and the knowledge most Americans have of the case is simply that the Court has held segregation to be illegal. I doubt very much whether concurring or dissenting opinions would have changed public reception of the decision; those who find its result distasteful have had no difficulty in framing their own “dissenting” opinions.
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Beyond the public’s unconcern with the proliferation of dissents, it seems futile to seek unanimity on the Supreme Court on other, more significant grounds. After all, to suggest as I have that the Court has become nine deliberative bodies because it faces subtle and troublesome questions about the rights of individuals is another way of saying that American society in general provides no consensus on a large variety of matters: the proper place of labor unions, the extent of Negro rights, the effect of a loyalty-security program on democratic liberties, or the relationship of religion to the state. While the Court simply stands divided on most of these issues, it might be well to recall that Congress is so totally paralyzed by rival pressures that it cannot act to end school segregation or pass a much needed law to regulate wiretapping. Its Rules Committee, deadlocked by the religious issue, is unable to report a school bill, and only after the greatest acrimony was the national legislature able to enact the 1959 Landrum-Griffin Bill imposing new curbs on trade unions. Similar conflicts exist within the administration, and, at bottom, throughout our society.
The Supreme Court functions as a political institution as much as a court of law, and its members are as representative of American life as are Congressmen and bureaucrats; it would be surprising indeed not to find the Justices in conflict over their judicial-political policies. Each one is truly his own deliberative body—appointed for life, responsible only to his conscience, and free to decide in the way he believes most appropriate—and the remarkable aspect of the Justices’ activity is the success they achieve in being a vital agency of American government. They help reconcile an 18th-century, agrarian-oriented Constitution to the needs of a thermonuclear age; break logjams that paralyze other branches of government; provide individuals with a final forum to vindicate their constitutional rights; and draw the ever shifting line between national and state powers. None of these functions is impaired by the Court’s being, in reality, nine deliberative bodies.
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Although friendly critics of the Warren Court such as Hart, Swisher, and Kurland would stoutly deny it, to long for a Court that shuns dissent and speaks with unifying authority is to popularize a view more at home with the mechanical jurisprudence of the last century (judges “discover” and impartially apply a stable law) than with the understanding of realistic jurisprudence, which stresses the pragmatic nature of the law and the judge’s role as a political decision-maker intimately related to his social and political environment. Put more bluntly, those who carp at the Warren Court’s fragmentation still worship—consciously or not—a priestly Supreme Court which is supposed to perform an oracular function.
There are, however, positive reasons why the proliferation of concurring and dissenting opinions is to be welcomed. The Court, it is well to remember, is an oligarchic institution, a potentially non-democratic excrescence on the American political scene. Through the development of a meaningful tradition of self-restraint—based in good part on the historical lesson that the Justices cannot long defy the explicit desires of Congress and President—it has been possible to reconcile the Court to a system of constitutional democracy. It remains, nevertheless, relatively immune from the day-to-day workings of the democratic process.
Long ago, Thomas Jefferson unsuccessfully demanded that the Supreme Court be made more compatible with popular government by requiring the Justices to state their individual views on cases. Each judge should “throw himself in every case on God and his country; both will excuse him for error and value him for honesty.” Jefferson believed this practice, known as delivering opinions seriatim, to be more open, more attuned to a democracy, than the alternative of minimizing differences in favor of a single opinion. A century and a half later the Warren Court has in effect adopted the technique so warmly endorsed by the Sage of Monticello.
Jefferson’s motives were mixed. Seriatim delivery had been commor prior to 1801 when his arch political foe, the forceful John Marshall, became Chief Justice and persuaded his associates to unite, whenever possible, behind one opinion. (Anxious to build the Court into a check upon the rising tide of Jeffersonian Republicanism, Marshall was probably right in believing that unanimity would aid his goals; the Court of the early 1800’s was a weak institution whose position as an agency of government was far from established.) In attacking unanimous opinions Jefferson was attacking Marshall. But whatever his motives, seriatim delivery—with its emphasis on conflict and a full airing of disputes—is more in harmony with democratic ideals. Justice Frankfurter summed up the argument for it in the recent cases upholding the legality of Sunday blue laws, when, opening a special concurring opinion, he explained: “So deeply do the issues raised by these cases cut that it is not surprising that no one opinion can wholly express the view even of all members of the Court who join in its result. . . . Such expression of differences of view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process.”
Most important, a diversity of opinions, though at times confusing and messy like the democratic process itself, dispels the old illusion that the Supreme Court is somehow apart from other agencies of government. For judicial disunity and heterogeneity reveal the Justices as they really are, mirrors of our social conflicts and instruments of political adjustment. And this, surely, is the more desirable alternative in a democracy: better nine deliberative bodies, clearly seen, than the myth of one disembodied tribunal mysteriously above the sweaty crowd.
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1 University of Chicago Press, 151 pp., $4.00.
