Libertarian Motivations on the Vinson Court

Abstract

Justice Frankfurter is fond of quoting an old English saying that “the devil himself knoweth not the mind of men.” The mind of a man who happens to be a judge is the center of many contending impulses when he is making it up, and an external reconstruction of the process is quite impossible. However, the rules of the game require that judges supply clues to their thought processes in the form of written opinions. In every major case decided by the Supreme Court, one or more of its members provide a written justification for the decision announced. The individualistic tradition of Anglo-Saxon jurisprudence, moreover, permits justices who do not agree with the views of their brethren to say so, and to give their reasons for dissenting. Thus the Supreme Court on decision day takes on the aspect of a small legislature in which votes are cast pro and con on significant issues of public policy, with accompanying explanations much more coherent and systematic and better-reasoned than are customarily available in explanation of votes cast, say, in the United States Senate.While it has not been usual to do so, these judicial votes can be subjected to the same kinds of analysis as have been traditionally employed for the study of legislative voting behavior.