Evening star., 1944-09-24

when non-unanimous findings were re-
corded in So per cent Of the cases set
down for decision by formal opinion.
This was the first term in the courts
history which saw its members divided
in the settlement of more than one
half Of such cases. For the previous
term (1942-3), the comparable percent-
age was "A and for the term before
that, 36.
In the most recent-the record-set-
ting-term, all the participating justices
concurred in only 81 az per cent? Of
the 1877 full opinions of the court. Dis
sent to the views of the majority was
registered in 80 instances-16 times by
judges out of the taking part, 3
times by 3 judges out OF 7. In the re-
manning 81 divided decisions, judges
dissented in 18 cases, dissented in
% cases, while in 20 there was disagree
ment by single judge.
For these figures, the writer is in
debted to study in which Prof. c.
Herman Pritchett of the department of
political science of the University of
Chicago brings up to date his periodic
analyses Of the Supreme Courts voting
behavior. The figures continue to affirm
his judgment, after a previous study,
that the present court, Notwithstanding
the fact that seven of It's nine mem
bers are Roosevelt apointees, is by far
the most badly divided body In the
history of the tribunal,
This state of affairs" says Prof.
Pritchett, referring to the 1884 record
of dissent, "is a startling departure
from the norms of earlier days, when
dissenting opinions customarily ranged
between 10 and 20 per cent of the total.
However, for the past seven or eight
terms, the Supreme Court has been
building up to the record now achieved"
Roberts Lead Dissenters.
Prof. Pritchett's tables show that
Justice Roberts, a Hoover appointee,
formerly the middle man" of the court
and now on its extreme right, is most
frequently at odds with the majority
Of his present colleagues. In the 1884
term he dissented in 80 per cent of the
130 cases in which he participated. The
next highest record of disagreement
was compiled by Justice Jackson-17
per cent-and the figures range down to
IL per cent for Chief Justice Stone and
the newest member of the court, Justice
Rutledge. Most of the justices, Prof.
Pritchett notes, have shown q fairly
steady rate of increase in their dissents
during the last five terms.
The analysts tables bring out the
pattern of disagreements within the
court. At one end Of the bench are
Justices Black and Douglas, who in the
1884 term were joined in Is dissents,
and at the other are Justices Roberts
and Frankfurter, with the same number
OF disagreements In common. The
Black-Douglas combination is Joined
sufficiently often by Justices Murphy
and Rutledge to warrant the conclusion
that these four form "a definite bloc on
the left" Similarly, the dissents of
Chief Justice Stone and Justice Reed
mark them off as partners of Frank
furter and Roberts in a right-wing
group.
"On balance" Prof. Pritchett saws
Jackson seems also to belong to this
(right-wing) group, though there is the
curious fact that he dissented only once
with Chief Justice Stone as compared
with five occasions on which he Joined
Justice Douglas in dissent. His record
would seem to indicate position less
consistent or more complex than that
OF his colleagues. Justice Roberts posi-
tion far to the right of his other COM
panions of the right wing is obvious
from the 13 dissents in which he could
get no support from any other member
of the bench"
Justice Roberts, 1t will be recalled,
sharply rebuked the court several times
IN the last term for its tendency to
override earlier decisions-a tendency
which, he said, indicates an intoler-
ance for what those who have composed
this court in the past have conscien-
tiously and deliberately concluded, and
involves an assumption that knowledge
and wisdom reside in us which was
denied to our predecessors.
Contrasts With 1878 Term.
Prof. Pritchett contrasts the present
cleavaees with the "clear-cut, regular
and almost symmetrical" division into
left and right wings which prevailed in
the court during the 1878 term. Chief
Justice Hughes was then in the exact
center, with four justices to his left,
from Brandeis to Black, and four to his
right, from Roberts to McReynolds
During the entire term no one of either
of these wings ever joined in dissenting
opinion with justice of the other wing.
BY contrast, in the 1884 term every
pair of justices with the sole exception
CT Frankfurter-Ru -Rutledge was joined in
at least one dissent,
Since the time of Justice Douglas ap-
rointment during the 1859 term, Prof.
Pritchett points out, the closest affinity
on the court has been that between
Douglas and Black. They agreed in Sc
per cent Of the disputed cases during
the 1884 session. Douglas and Muir
ply show the next highest rate Of agree
ment. Among those on the right, the
two closest together are Stone and Reed.
Prof. Pritchett finds that during the
past few terms the left-wing justices,
plus Stone, have been consistently on
the civil liberties side, while the right
wing justices other than Stone have
supported Government restrictions on
civil liberties" This division was not
brought out SO sharply in 1884 as in
previous terms, but the tendency re-
manned clear Mummy is shnura ia he