Divisions of Opinion Among Justices of the U. S. Supreme Court, 1939–1941

“We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.