VI. The Roosevelt Court: Votes and Values

In No. 78 of The Federalist, Alexander Hamilton wrote: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…” Whatever acceptance this view of the judge as automaton and of the judicial process as a ministerial function may once have had, little trace remains of it today, after ten years of experience with the “reorganized” Supreme Court. The Roosevelt Court was not, of course, the first on which judicial decisions were influenced by the personal values of its justices. Throughout the history of the Court, the autobiographical element in its output has been as important as when Justice Holmes bluntly told his colleagues in 1905 that “this case is decided upon an economic theory which a large part of the country does not entertain.” But the prevailing theory was that judges did not make law, they merely found it.The constitutional revolution of 1935–37 changed all that. The public, as Max Lerner says, “began to see that judicial decisions are not babies brought by constitutional storks, but are born out of the travail of economic circumstance.” For two terms, the Constitution meant what Justice Roberts said it meant. After the consummation of the revolution, the forces which had been most ardent in picturing earlier conservative courts as demonstrating the workings of a government of law could only explain the strange phenomenon of a liberal court as the triumph of a government of men. Additional recent factors serving to underline the personal basis of judicial decisions have been the tossing of barbed phrases on the bench, Justice Jackson's ill-tempered public attack on one of his colleagues, and the mounting tide of dissenting opinions.