Stare Decisis, Dissent, and the Background of the Justices of the Supreme Court of the United States

THE notion that judicial decision-making may be influenced in some manner by the social, educational, economic, or political backgrounds of the judges has had strong support in many phases of American political life. On a number of occasions, dramatic political debates were engaged in over the question whether certain background factors would predispose a justice to decide cases in a particular way. In comparatively recent times, the nomination of Charles Evans Hughes to the Chief Justiceship was opposed on the ground that his conditioning as a corporation lawyer would render him insensitive to the constitutional claims of the underprivileged.' A few years later, the nomination of Senator Hugo L. Black was vigorously opposed because his earlier membership in the Ku Klux Klan would allegedly predispose him against racial minorities.2 At a somewhat broader level, the debates over the comparative merits or demerits of the elective or appointive methods of judicial selection often reflect deep-seated convictions that the pre-judicial career of judicial candidates may be prime determinants of the manner in which these men will decide cases. A related argument, which has had support, is that appointees to higher appellate benches should have prior judicial experience. Such experience, it is felt, generates self-restraint and recognition of the need for stability in decision-making. This argument has provided the basis, whether real or ostensible, for legislative as well as executive proposals regarding the selection of federal appellate judges and justices. For example, the Eisenhower administration had, for several years, included prior judicial experience as one of its criteria for selections to federal appellate courts.3 In Congress, Senator Smathers introduced a bill which would limit appointments to the Supreme Court to persons who have had at least five years' prior judicial experience on either an inferior federal court or on the highest appellate court of a state. In 1956, Senator Stennis, speaking in support of the Smathers bill, argued that "a majority of [the present members of the *The genesis of this paper was the Law and Behavioral Sciences programme at the Law School of the University of Chicago, 1959-60. I am indebted to the Ford Foundation and to the Law School for this splendid research opportunity. I am also indebted to Professor David Gold, Department of Sociology, State University of Iowa, for an incisive methodological appraisal in the final stages of the research investigation. **State University of Iowa. 1Merlo Pusey, Charles Evans Hughes (2 vols., New York, 1951), pp. 648-62. 2John P. Frank, Mr. Justice Black (New York, 1949), pp. 98-107. 3William P. Rogers, "Judicial Appointments in the Eisenhower Administration" (1957), 41 Journal of the American Judicature Society 39.