¹ For bibliography see Schubert, Glendon, “Behavioral Research in Public Law” this Review, 57 (June, 1963), 433–445.Google Scholar Some out standing later examples are Murphy, Walter F., Elements of Judicial Strategy (Chicago, 1964)Google Scholar; Shapiro, Martin, Law and Politics in the Supreme Court (New York, 1964)Google Scholar; Schubert, , Judicial Behavior; A Reader in Theory and Research (Chicago, 1964)Google Scholar; Schubert, , The Judicial Mind (Evanston, 1965)Google Scholar; and Ulmer, S. Sidney, “Toward a Theory of Sub-Group Formation in the United States Supreme Court,” Journal of Politics, 27 (February, 1965), 133–152.CrossRefGoogle Scholar Also, see symposia, , “Jurimetrics,” Law and Contemporary Problems, 28 (Winter, 1963), 1–270 Google Scholar; and “Social Science Approaches to the Judicial Process” Harvard Law Review, 79 (June, 1966), 1551–1628.

² See, e.g., Berns, Walter, “Law and Behavioral Science,” Law and Contemporary Problems, 28 (Winter, 1963), 185–212 CrossRefGoogle Scholar; Mendelson, Wallace, “The Neo-Behavioral Approach to the Judicial Process: A Critique,” this Review, 57 (September, 1963), 593–603 Google Scholar, and communications, 948–953; Becker, Theodore L., Political Behavioralism and Modern Jurisprudence (Chicago, 1964)Google Scholar; and Fuller, Lon L., “An Afterword: Science and the Judicial Process,” Harvard Law Review, 79 (June, 1966), 1604–1628.CrossRefGoogle Scholar

³ Tanenhaus, Joseph, “Supreme Court Attitudes Toward Federal Administrative Agencies,” Vanderbilt Law Review, 14 (March, 1961), 481.Google Scholar

⁴ Cf. Schubert, Glendon, “Ideologies and Attitudes, Academic and Judicial,” Journal of Politics, 29 (February, 1967), 3–40 CrossRefGoogle Scholar; “Academic Ideology and the Study of Adjudication,” this Review, 61 (March, 1967), 106–129.

⁵ See Schubert, , The Judicial Mind, pp. 76–77, 185–186Google Scholar; and “Jackson's Judicial Philosophy: An Exploration in Value Analysis,” this REVIEW, 59 (December, 1965), 944–945. Mason, Alpheus T., Harlan Fiske Stone: Pillar of the Law (New York, 1956), p. 641 Google Scholar; and Bickel, Alexander, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, 1957).Google Scholar

⁶ Knox v. Lee, 12 Wall. 457 (1870); Juilliard v. Greenman, 110 U.S. 421 (1884); Minersville School District v. Gobitis, 310 U.S. 586 (1940); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); United States v. Carolene Products Co., 304 U.S. 144, 152 (1938). Charles E. Hughes to Felix Frankfurter, November 1, 1939: Box 18, Frankfurter Correspondence, Manuscript Division, Library of Congress.

⁷ Op. cit., note 1 supra.

⁸ The Murphy papers are located at the Michigan Historical Collections of the University of Michigan, Ann Arbor. Unless otherwise cited, manuscript material comes from this source. Additional details about cases discussed in the text may be found in the author's Mr. Justice Murphy: A Political Biography (forthcoming, Princeton University Press).

⁹ Freund, Paul A., “The Supreme Court: A Tale of Two Terms,” Ohio State Law Journal, 26 (Spring, 1965), 227 Google Scholar; Jackson, Robert H., “Full Faith and Credit—The Lawyer's Clause of the Constitution,” Columbia Law Review, 45 (January, 1945), 1–2.CrossRefGoogle Scholar

¹⁰ Howard, J. Woodford Jr., “Justice Murphy: The Freshman Years,” Vanderbilt Law Review, 18 (March, 1965), 473–505.Google Scholar Thornhill v. Alabama, 310 U.S. 88 (1940); N.L.R.B. v. Virginia Electric and Power Co., 314 U.S. 469 (1941); Bridges v. California, 314 U.S. 252 (1941); Hines v. Davidowilz, 312 U.S. 52 (1941); and Cantwell v. Connecticut, 310 U.S. 296 (1940). In Cantwell, Justice Stone also withheld a concurrence after Justice Roberts deleted a passage which had questioned state regulation of solicitation as a prior restraint. Copy, Harlan F. Stone to Owen J. Roberts, May 2, 1940: No. 632, Box 129.

¹¹ Synder, Eloise, “The Supreme Court as a Small Group,” Social Forces, 36 (March, 1958), 236–238.Google Scholar

¹² For an incisive critique of clique and power-game concepts as applied to the Supreme Court, see Ulmer, op. cit., note 1 supra.

¹³ Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, 6 (Fall, 1957), 284–286.Google Scholar

¹⁴ Hirabayashi v. United States, 320 U.S. 81 (1943). See Fine, Sidney, “Mr. Justice Murphy and the Hirabayashi Case,” Pacific Historical Review, 33 (May, 1964), 195–209.CrossRefGoogle Scholar Korematsu v. United States, 323 U.S. 214 (1944). Douglas, J., draft dissent, circulated December 1, 1944: No. 20, Box 133.

¹⁵ Eisler v. United States, 338 U.S. 189 (1949). Murphy, J., draft opinion, circulated June 3, 1949: No. 255, Box 139. This attack, incidentally, anticipated by almost twenty years Judge Howard F. Corcoran's celebrated injunction against H.U.A.C. in 1966, which was based upon a theory of community rights and the chilling effect on free speech developed by way of Murphy's opinion in Thornhill v. Alabama as revived by the Warren Court in Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Since Murphy was ill during much of the preparation of his Eisler opinion, however, the draft dissent must be viewed as a clerk's trial balloon which the Justice agreed to sponsor in hopes of restraining committee abuse. See New York Times, August 17, 1966, p. 24:5–8.

¹⁶ 325 U.S. 91 (1945). Rutledge, J., Memorandum to Conference, February 24, 1945: No. 42, Box 133.

¹⁷ Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). Cf. draft dissents of Murphy and Rutledge, JJ: No. 142, Box 137.

¹⁸ 322 U.S. 694 (1944); 329 U.S. 495 (1947).

¹⁹ 323 U.S. 214 (1944). Stone, C.J., undated Memorandum to Conference; Black, J., Memorandum to Conference, December 8, 1944: No. 20, Box 133.

²⁰ Sickels, Robert J., “The Illusion of Judicial Consensus: Zoning Decisions in the Maryland Court of Appeals,” this Review, 59 (March, 1965), 100–104.Google Scholar On the effects of limited time, see Jackson, Robert H., The Supreme Court in the American System of Government (Cambridge, 1955), pp. 15–16.Google Scholar

²¹ Choctaw Nation v. United States and Chickasaw Nation, 318 U.S. 423 (1943). Cf. draft opinions of February 5, 1943, and March 1, 1943: No. 80, Box 131.

²² 336 U.S. 198 (1949). Clerk to Murphy, J., February 1, 1949; Frankfurter, J., comment on slip opinion, February 8, 1949: No. 56, Box 139. The conference vote was 5–4 in favor of reversal, with Vinson, Black, Douglas, Rutledge, and Murphy in the majority, but the last three Justices apparently had misgivings because the clerk noted question marks by their votes. The final outcome was an affirmance, Douglas, J., dissenting without opinion.

²³ Clerk to Murphy, J., January 31, 1942. Box 101. Ulmer to author, December 16, 1966.

²⁴ 330 U.S. 1, 18 (1949).

²⁵ Bramwell, J., in Andrew v. Styrap, 26 Google Scholar Law Times Reports (N.S.) 704, 706 (1872), referring to his judgment in Ellis v. Kelly, 3 Law Times Reports (N.S.) 331 (1860).

²⁶ See Fuller, Lon L., “The Adversary System,” in Berman, Harold J. (ed.), Talks on American Law (New York, 1961), pp. 39–41.Google Scholar

²⁷ 319 U.S. 141 (1942); 328 U.S. 549 (1946); 337 U.S. 1 (1949).

²⁸ Conference notes, No. 238, Box 132; No. 966, Box 131. Cf. draft opinions circulated by Black, J.: No. 238, Box 132.

²⁹ 319 U.S. 141, 153; 319 U.S. 157, 179.

³⁰ See Bell v. Maryland, 378 U.S. 226, 344 (1964); Cox v. Louisiana, 379 U.S. 536, 580 (1965); Brown v. Louisiana, 383, U.S. 131, 151 (1966); Adderley v. Florida, 385 U.S. 39 (1966). Cf. Schubert, , Judicial Policy-Making (Chicago, 1965), p. 127 Google Scholar; Wall Street Journal, November 2, 1965, p. 18; and New York Times, February 27, 1966, IV, p. 7.

³¹ On first impression, only Justice Douglas voted to intervene. Justice Murphy passed, and Justice Rutledge echoed general doubts about the political implications of the case. Rutledge later changed his mind on the justiciability issue, but cast the decisive vote against intervention because of difficulties perceived in equitable remedies. Conference notes, No. 804, Box 136. 328 U.S. 549, 564 (1946).

³² Ibid. Docket Book, 1945 Term, Box 92. Harold H. Burton Papers, Manuscript Division, Library of Congress.

³³ 337 U.S. 1 (1949).

³⁴ Conference notes, No. 272, Box 140, Murphy Papers. Docket Book, 1948 Term, Box 182; and conference notes, Box 184, Burton Papers. Cf. Washington Post, July 20, 1949, p. 12:3.

³⁵ For instance, Justice Frankfurter's dissent in United States v. Kahriger, 345 U.S. 22, 38 (1953), was predicated in part upon an assumption that Justice Brandeis, by joining the majority in the Child Labor Tax Case, 259 U.S. 20 (1922), considered the tax unconstitutional. Bickel, op. cit., pp. 16–19, indicates that Frankfurter's inference was erroneous inasmuch as Brandeis had acquiesced in the Child Labor Tax Case for largely tactical reasons.

³⁶ In this connection, see Murphy, Walter F., “Deeds Under A Doctrine: Civil Liberties in the 1963 Term,” this Review, 59 (March, 1965), 64–79.Google Scholar

³⁷ Wiley Rutledge to Frank Murphy, December 1, 1943: No. 53, Box 132. Commissioner of Internal Revenue v. Gooch Milling & Elevator Co., 320 U.S. 418 (1943).

³⁸ 321 U.S. 158, 171 (1944), which sustained application of a child labor law against religious solicitation at night by a Jehovah's Witnesses child accompanied by her guardian. Cf. the absolutist quality of Murphy's lone dissent and this preliminary observation to his clerk, who had done much to agitate the Court into review: “After carefully examining the records and briefs and with no little reflection and the benefit of the Rutledge draft, it is not difficult to come out on the same side of the question that he does although all my instincts are against it and I want very much to be on the other side in dissent if I can stand on firm ground…. Rutledge has made something of an impressive case. I want you to see his side of it and clearly what we have to meet. He stands on the grounds of enlightened conception of control and responsibility for child welfare. As he sees it it is modern social legislation under the police power to which religious as well as secular organizations ought to be required to conform,—and to which the ‘rights’ of the parent or custodian must be subordinated for reasons outlined by Rutledge. But I do not want to conform—I want to save all that can be saved for the individual in freedom of conscience and I want to save all that can be saved for the parent as against the state in the right to teach the religion to the child. This might sound a little Catholic but I assure you I have nothing in mind but liberty of religion in a country that was conceived as a sanctuary for oppressed people…. What motives are behind the prosecutions in this case? What is there in the record to support my suspicions? Very little. But I am confident I am right about it. We are up against a tough problem I know when we attempt to say that the public streets are a no-man's-land where social legislation cannot operate and parents or religious bodies are free to do as they like…. But … I don't see a genuine or substantial evil in what the child did in this case. She was evangelizing her religion as she understands it (as well as her guardian). Their literature on religion must be offered to the public…. Is the matter in issue the rights of the custodian, not the child? It is to be observed that the custodian herself thought the child should be left home, and took her along only because she cried. But out on the street she went to the defense of the child's legal right.” Memorandum to clerk, January 22, 1944: No. 98, Box 133.

³⁹ Justices Jackson and Murphy, who had collided within the Justice Department before joining the Court, seldom joined each other's dissenting opinions and, when spokesmen for opposing positions, often wrote in pejorative style. See, e.g., Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161 (1945); Western Union Co. v. henroot, 323 U.S. 490 (1945); S.E.C. v. Chenery Corp., 332 U.S. 194 (1947).

⁴⁰ Auerbach, et al, The Legal Process (San Francisco, 1961), pp. 358–359.Google Scholar Frank Murphy to G. A. Richards, December 16, 1940. Box 93.

⁴¹ Frankfurter, J., Memorandum to Conference, April 25, 1947: No. 84, Box 136. Harris v. United States, 331 U.S. 145 (1947).

⁴² See Burnham, Walter Dean, “The Changing Shape of the American Political Universe,” this Review, 59 (March, 1965), 7–28 Google Scholar; Miller, Warren E., “Party Identification and Partisan Attitudes,” in Wolfinger, Raymond E. (ed.), Readings in American Political Behavior (Englewood Cliffs, 1966), pp. 252–253.Google Scholar

⁴³ Cf. Shapiro, op. cit., 37–38, and Schubert's, Glendon reply in “Ideologies and Attitudes, Academic and Judicial,” op. cit., 30–38, note 4 supra. Google Scholar

⁴⁴ Cf. Schubert in ibid., with his earlier work in “The Study of Judicial Decision-Making As An Aspect of Political Behavior,” this Review, 52 (December, 1958), 1010–1011, and with Spaeth, Harold J., “Warren Court Attitudes Toward Business: The ‘B’ Scale,” in Schubert, (ed.), Judicial Decision-Making (New York, 1963), pp. 89–90 Google Scholar; and with Ulmer, S. Sidney, “Supreme Court Behavior and Civil Rights,” Western Political Quarterly, 13 (June, 1960), 296.CrossRefGoogle Scholar For a critique of scaling techniques, see Tanenhaus, Joseph, “The Cumulative Scaling of Judicial Decisions,” Harvard Law Review, 79 (June, 1966), 1590–1594.CrossRefGoogle Scholar

⁴⁵ “Observations of Chief Justice Hughes,” April 25, 1940: No. 690, Box 129. 310 U.S. 586 (1940).

⁴⁸ For citations, see notes 27, 10, and 39 supra.

⁴⁷ See Time, Inc. v. Hill, 385 U.S. 374 (1967); Berger v. New York, 18 L. ed. 2d 1040, 1059 (1967); and Prosser, William L., “Privacy,” California Law Review, 48 (1960), 383.CrossRefGoogle Scholar Cf. Schubert, , The Judicial Mind, pp. 171–174.Google Scholar

⁴⁸ See op. cit., note 43 supra; The Judicial Mind, pp. 286–287; and Judicial Policy-Making, p. 113.

⁴⁹ Harris v. United States, 331 U.S. 145 (1947); Trupiano v. United States, 334 U.S. 699 (1948).

⁵⁰ Conference notes; Frankfurter, J., Memorandum to Conference, April 25, 1947; note, Wiley Rutledge to Frank Murphy, April 12, 1947, and comment on slip opinion, April 7, 1947: No. 34, Box 136. Zap v. United States, 328 U.S. 624, 630 (1946); Davis v. United States, 328 U.S. 582, 594 (1946).

⁵¹ Goldman v. United States, 316 U.S. 129, 136 (1942); Felix Frankfurter to Frank Murphy, April 3, 1942; Murphy, J., to clerk, undated: No. 962, Box 130.

⁵² Felix Frankfurter to Frank Murphy, February 15, 1947; comment on slip opinion, April 3, 1947: No. 34, Box 136. Murphy to Frankfurter, April 10, 1948: No. 427, Box 139.

⁵³ Comment on slip opinion, American Power & Light Co. v. S.E.C., 329 U.S. 90 (1946): Nos. 4–5, Box 136.

⁵⁴ Felix Frankfurter to Wiley Rutledge, January 2, 1948: Box 34, Frankfurter Correspondence, loc. cit. Cf. Murphy, J., in Steele v. L.&.N.R. Co. , 323 U.S. 192 Google Scholar, 208 (1944).

⁵⁵ Adamson v. California, 332 U.S. 46, 68 (1947). Griswold v. Connecticut, 381 U.S. 479 (1965).

⁵⁶ Conference note, No. 626, Box 138. 331 U.S. 503 (1947).

⁵⁷ 330 U.S. 1 (1947).

⁵⁸ Docket notes and conference notes, No. 52, Box 138.

⁵⁹ Schubert, , The Judicial Mind, p. 99.Google Scholar

⁶⁰ 316 U.S. 455 (1942).

⁶¹ Conference notes, No. 837, Box 132.

⁶² McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952).

⁶³ Shapiro, Martin, “Stability and Change in Judicial Decision-Making: Incrementalism or Stare Decisis?”, Law in Transition Quarterly, 2 (Summer, 1965), 134–157.Google Scholar

⁶⁴ Kurland, Philip B., Religion and the Law (Chicago, 1962).Google Scholar

⁶⁵ Cf. Miranda v. Arizona, 384 U.S. 436 (1966), with Zorach v. Clauson, 343 U.S. 306 (1952); Two Guys v. McGinley, 366 U.S. 582 (1961); Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961); and denial of certiorari in church tax exemption cases, Cree v. Goldstein and Murray v. Goldstein, 385 U.S. 816 (1966), and in Horace Mann League v. Maryland Board of Public Works, 385 U.S. 97 (1966).

⁶⁶ See Grossman, Joel B., “Social Backgrounds and Judicial Decisions: Notes for a Theory,” Journal of Politics, 29 (May, 1967), 334–351.CrossRefGoogle Scholar

⁶⁷ Op. cit., note 1 supra. Also, see Grossman, Joel B., “Role-Playing and the Analysis of Judicial Behavior: The Case of Mr. Justice Frankfurter,” Journal of Public Law,” 11 (1962), 285–309.Google Scholar

⁶⁸ Cf. Hart, Henry M. Jr., “Foreward: The Time Chart of the Justices, The Supreme Court, 1958 Term,” Harvard Law Review, 73 (November, 1959), 84–125 CrossRefGoogle Scholar; and Thurman Arnold, “Professor Hart's Theology,” ibid. (May, 1960), 1298–1317.

⁶⁹ Cf. Harlan, J., in Miranda v. Arizona , 384 U.S. 436, 509–510 (1966).Google Scholar