Dissent behavior and the social background of supreme court justices

The Journal of Politics

Volumn 32, Issue 3, 1970, Pages 580-598

  Ulmer, S Sidney ^a  

^a UNIVERSITY OF KENTUCKY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0001651861     PISSN: 00223816     EISSN: 14682508     Source Type: Journal    
DOI: 10.2307/2128832     Document Type: Article

References (26)

1. For example, see S. Sidney Ulmer, “The Discriminant Function and a Theoretical Context for Its Use in Estimating the Votes of Judges,” in The Frontiers of Judicial Research, ed. by Joel Grossman and Joseph Tanenhaus (New York: Wiley & Sons, 1969), 335-369; and S. Sidney Ulmer, “Mathematical Models for Predicting Judicial Behavior,” in Mathematical Applications In Political Science-77/, ed. by Joseph Bernd (Charlottesville, Va.: University of Virginia Press, 1967), 67-95; Fred Kort, “A Non-Linear Model for the Analysis of Judicial Decisions,” American Political Science Review, 62 (June 1968), 546-555; and Fred Kort, “Content Analysis of Judicial Opinions and Rules of Law,” in Judicial Decision-Making, ed. by Glendon Schubert (New York: The Free Press, 1963), 133-197; Glendon Schubert, The Judicial Mind (Evanston, 111.: Northwestern University Press, 1965); David Danelski, “Legislative and Judicial Decision Making: The Case of Harold H. Burton,” in Political Decision-Making, ed. by S. Sidney Ulmer (New York: D. Van Nostrand, 1970), 121-146.
2. For a recent treatment of dissent behavior at the state level see Bradley C. Canon and Dean Jaros, “Factors Relating to Dissent Rates on State Supreme Courts” (paper presented at the Annual Meeting of the Midwest Political Science Association, Ann Arbor, Michigan, April 24-26, 1969); and Bradley C. Canon and Dean Jaros, “Basic Comparative Data on State Supreme Courts” (Mimeographed); for dissent in the U.S. Supreme Court, see Joel Grossman, “Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior,” Journal of Politics, 30 (November 1968), 1068-1090.
3. S. Sidney Ulmer, “Subset Behavior in the U.S. Supreme Court,” in The Study of Coalition Behavior, ed. by S. Groennings, E. W. Kelley, and M. Leiserson (New York: Holt, Rinehart and Winston, 1970).
4. Cf. Stone's remark that “a considered and well-stated dissent sounds a warning note that legal doctrine must not be pressed too far,” reported in A. T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 19.56), 591; Cardozo's comment that “the closeness of the division attests the measure of the doubt.” People ex rel Hayes v. McLaughlin, 247 N.Y. 238, 242; White's view that “the only purpose which a dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the conclusions of courts of last resort.” Pollock vs. Farmers Loan and Trust Co., 157 U.S. 429-608; and Holmes's complaint that “a little while ago, I wrote a case in which I expressed the result in terms to suit the majority of the brethren, although they didn't suit me. Years ago I did the same tiling in the interest of getting a job done. I let the then brethren put in a reason that I thought bad and cut out all that I thought good and I have squirmed ever since, and swore that never again -but again I yielded and now comes a petition for rehearing pointing out all the horrors that will ensue from just what I didn't want to say,” Mark DeWolfe Howe, ed., Hohnes-Laski Letters (Cambridge: Harvard University Press, 1953), 901.
5. The various dissenting opinions in Roth v. U.S., 354 U.S. 476; Ginzburg v. U.S., 383 U.S. 463; Mishkin v. N.Y., 383 U.S. 502; A Book v. Attorney General of Massachusetts, 383 U.S. 413, and other obscenity cases are excellent illustrations of the use of dissent to expose disparate perceptions of a problem.
6. As reflected in Holiness comment, after dissenting in Baldwin v. Missouri, 281 U.S. 586, that “I suspect McReynolds may regard me as a bird that befouls its own nest… ” Holmes denied any ill feeling on his part but when writing the opinion for the Court in Casey v. U.S., 276 U.S. 413, reported that “… at the last minute McReynolds said that he wanted to write something (against the op.) and so it went over-it is rather aggravating to have things hang up in that way because the judge doesn't take the trouble to be ready. He has three weeks of vacation for it. I tried to put a shovel full of coals on his head by handing him my prospective dissent where we stand 5 to 4 unless he changes his mind, and where he has the majority opinion to write-which he has not started on yet.” Howe, Holmes- Laski Letters, 1027.
7. Quoted in Glendon Schubert, Constitutional Politics (New York: Holt, Rinehart and Winston, 1960), 40.
8. As Blalock and others have pointed out, we can never prove that any model represents reality or that the variable relations in a given model exist in fact. By testing multiple models, however, we may eliminate those that are less effective in providing correct predictions. If a point is reached at which all predictions are repeatedly verified, we still would not have proved that the model and reality are the same. But such an occurrence would permit an inference to the effect that existing differences can be safely ignored if the purposes for which the model is being used do not undergo change. Hubert M. Blalock, Jr., Causal Inferences in Nonexperimental Research (Chapel Hill: University of North Carolina Press, 1964).
9. Ulmer, “The Discriminant Function,” 339-342.
10. John Schmidhauser, “The Justices of the Supreme Court: A Collective Portrait,” Midwest Journal of Political Science, 3 (March 1959), 1-37; Cf. Sidney Ulmer, “Public Office in the Social Background of Supreme Court Justices,” The American Journal of Economics and Sociology, 21 (January 1962), 57-68.
11. John Schmidhauser, “Stare Decisis, Dissent, and the Background of the Justices of the Supreme Court of the United States,” University of Toronto Law Journal, XIV, 2 (1962), 194-212.
12. S. Sidney Ulmer, “The Political Party Variable in the Michigan Supreme Court,” Journal of Public Law, 11 (Spring 1963), 352-362.
13. Stuart Nagel, “Testing Relations Between Judicial Characteristics and Judicial Decision-Making,” Western Political Quarterly, 15 (September 1962), 425-437; Stuart Nagel, “Political Party Affiliation and Judges Decisions,” American Political Science Review, 55 (September 1961), 844-850; Stuart Nagel, “Ethnic Affiliations and Judicial Propensities,” Journal of Politics, 24 (February 1962), 94-110. Cf. Glendon Schubert, Quantitative Analysis of Judicial Behavior (East Lansing: Free Press of Glencoe, III., 1959), 129-142.
14. Kenneth Vines, “Federal District Judges and Race Relations Cases in the South,” Journal of Politics, 26 (May 1964), 338-357.
15. David W. Adamany, “The Party Variable in Judges Voting: Conceptual Notes and a Case Study,” American Political Science Review, 62 (March 1969), 57-73.
16. Thomas P. Jahnige and Sheldon Goldman, eds., The Federal System, (New York: Holt, Rinehart and Winston, 1968), 128.
17. Don R. Bowen, “The Explanation of Judicial Voting Behavior from Sociological Characteristics of Judges” (unpublished Ph.D. dissertation, Yale University, 1965).
18. John Schmidhauser, The Supreme Court: Its Politics, Personalities, and Procedures (New York: Holt, Rinehart and Winston, 1960), 57.
19. The Schmidhauser data on which we have relied is on file in Ann Arbor at the InterUniversity Consortium for Political Research.
20. For a discussion of how the individual relieves intra-psychic tension and expresses unconscious needs in politics, see Robert Lane, Political Life (New York: The Free Press, 1959), 115-132. Cf. Fred I. Greenstein's statement that “… in times of personal or community crisis individuals might tend to resume their earlier ways of viewing authority.” “The Benevolent Leader: Children's Images of Political Authority,” American Political Science Review, 54 (December I960), 934-943, 942.
21. Harold Lasswell, Psychopathology and Politics (New York: The Viking Press, 1960), 92-93.
22. Harold Lasswell, Power and Personality (New York: W. W. Norton & Co., 1948), 61 ff.
23. L. S. Kubie, The Neurotic Distortion of the Creative Process (Lawrence: University of Kansas Press, 1958) and “The Neurotic Process as the Focus of Physiological and Psycho-analytic Research,” Journal of Mental Science, 104 (July 1958), 518-536. And see the hypothesis of Greenstein that “… having learned to see adults as many times life size, children simply misperceive and otherwise screen out the discordant negative elements in the adult political environment.”
24. Ulmer, “The Discriminant Function,” 352-356.
25. Joel Grossman, “Social Backgrounds and Judicial Decision-Making,” Harvard Law Review, 79 (June 1966), 1551-1564.
26. The author is currently engaged in collecting the dissenting votes of all justices who have sat on the Supreme Court to date and social background data on those justices who have sat since the Schmidhauser data were collected. The first will provide an improved dependent criterion while the latter will permit the assessment of hypotheses over the entire period of the Court's history.