REVIEWS
| Date | 01 November 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00339.x |
| Published date | 01 November 1955 |
REVIEWS
CIVIL
LIBERTIES
AND
THE
VINSON
COURT.
By
C.
HERMAN
PRITCHETT.
297
and xi
pp.
with index. The University
of
Chicago Press.
1954.
[England
:
Cambridge University
Press.]
THIS
book is in effect
a
continuation of Professor Pritchett’s earlier study
‘‘
The Roosevelt Court” which attracted a good deal of attention, by no means
all of it of
a
favourable character, when it appeared in
1948.
The author
Is
not a lawyer but
a
sociologist. He is, however, aware that he is not
equipped to discuss legal problems on a technical basis and it is but seldom
that he gets into difficulties. His method of approaching his subject is to
study the individual reactions of the justices of the Supreme Court to the
various problems which are brought before them for decision. That court
is
concerned with policy making; legal policy admittedly, political social
policy in fact, though not always admittedly. In policy making the tem-
perament of the judge, and his philosophy of life, are decisive factors. This
has been generally accepted since the time of Holmes-indeed Judge Jerome
Frank and his school go further and regard the personal approach of the
judge as the essential element in all case deciding. Professor Pritchett’s
important contribution to this discussion is that he attempts, by the detailed
examination of a whole series of cases which have been before the Supreme
Court, to analyse the way this factor operates. He even goes
so
far
as
to
provide statistical analyses of the alignments of the different justices in
groups of cases where the decisions were not unanimous-and one of the
most significant facts which he brings out is that since the time of Holmes
there has been
a
remarkable increase in the number of non-unanimous
decisions handed down, amounting in some terms actually
to
no less than
80
per cent., and the present generation of justices have been much less
ready to give up their personal views, and to concur with judgments as to
which they felt doubt, than were the justices of earlier times. The
use
of
these statistical methods was rather sharply criticised by some reviewers of
“
the Roosevelt Court,” and in the present volume the author does not make
such extensive use of them. In the earlier
volume it was interesting to observe how a justice like Stone would react
as
between political and economic liberty; his judgments being more left in
the former type of case than in the latter: comparisons
of
the different
tables yielded many interesting results of this kind.
The present volume covers
a
somewhat narrower field than the earlier one,
since it deals only with cases on civil liberties, which of course have greatly
engaged the attention of the Supreme Court since the end of the war.
Nevertheless even in the earlier volume it was with aspects of criminal,
administrative, and labour law in which liberty was involved that Professor
Pritchett had concerned himself
so
that the difference in “scope” is not
so
great as might
at
first
appear. The additional concentration does enable
Professor Pritchett to push his analysis rather further, which brings out that
even in respect
of
civil liberty one aspect of the subject may evoke greater
enthusiasm in a particular justice than another. Thus Jackson while on
the whole occupying
a
position on the right wing of the court was sensitive
on the subject of search and seizure in respect of which he was usually
prepared to go further than the avowed libertarians Black, Douglas and
Rutledge, who tended to take into account the sort of circumstances in which
the right of search
or
seizure was being used, being much more ready
to
626
Personally
I
am
sorry
for this.
Nov.
1955
REVIEWS
627
uphold the use of these powers in support of the enforcement of
a
social
law,
e.g.,
against bootleggers, than when directed at alleged political
conspirators.
It
is interesting to observe that quite half the justices who figure
so
prominently in these pages had spent the best part of their earlier working
lives teaching in law schools. This fact, however, does not seem to influence
the way they lined
up.
Thus Douglas from Yale and Rutledge from Iowa
were fairly consistently in the left while Frankfurter from Harvard is found,
during the period of the Vinson court at any rate, almost as certainly in the
other camp. The last named “was destined to become one of the great
puzzles of the Roosevelt court,” though during the period dealt with in the
present volume his position in the court had become clearer. His work
and
personality are certainly one
of
the most interesting features of Professor
Pritchett’s book. While
at
Harvard his name had been associated with that
of Chafee in the struggle to uphold civil liberties, and he had been an early
academic supporter of the New Deal. He had of course also been
a
leading
disciple of Holmes. The “puzzle” with regard
to
him is that in these
circumstances he should have become associated with the
“
right
”
wing
of
the Supreme Court particularly in civil liberties cases.
The actual handling of practical business does of course often lead to the
development of a more conservative attitude, particularly perhaps in those
whose experience has been largely academic. There may be an element
of
this with Justice Frankfurter. More important, however, appears to be
his deliberate decision not to allow personal predilections to influence his
judgments; he has become an outstanding adherent to the doctrine
of
judicial restraint. This has meant in the past that the judiciary should
refrain from avoiding contests with the legislature md executive except in
cases where the duty to do
so
is clear and imperative. With Frankfurter
this has apparently often meant sacrificing
a
view which he wpdd otherwise
have given effect to in the interest of democratic principle. He has since
Holmes been by temperament the most philosophic of the Supreme Court
justices, and his judicial action is symptomatic of
it
carefully worked out
system of thought. In this his work is perhaps more in line with
our
own
conception of the work
of
an appellate judge than that prevalent in the
U.
S.
A., at any rate as regards the Supreme Court.
I
must not be taken to mean by this that the personal element does not
play its part in the judicial process in this country; of course it does.
But
our
courts do not have the same conception of their work being that of
policy making as prevails in the American Federal Courts, at any rate in
regard to constitutional matters. The English judge is concerned to apply
the policy laid down by the legislature; the American judge has to construe
statutes in the light of constitutional instruments and in the spirit of
a
some-
what elastic Supreme Court policy which has developed down the years.
The American is thus
a
good deal freer than his English counterpart.
Nevertheless it would be interesting and indeed valuable to apply
a
modi-
fied form of Professor Pritchett’s method to some period of
our
own legal
history with
a
view to assessing how, say in the House of Lords, the develop-
ment of
our
law,
or
conversely its failure to develop, has been influenced
by the temperaments and philosophies of
our
judges. Till that has been done
English judges might do worse than peruse Professor Pritchett’s two
volumes which could open the eyes of some of them to temptations the
existence of which they had never suspected.
C.
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