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S, Social Background of the Justices.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

Social Background of the Justices.

The personal attributes of the justices of the Supreme Court have, since the Court’s beginning in 1790, been the center of intense political interest. Serious scholarly analysis of such attributes has largely been a twentieth-century endeavor. Selection to the Court has reflected, in successive historic eras, the extent to which groups have been denied or have achieved access to major national political elite positions. From this broad perspective, Supreme Court appointments generally have been gained later than election to Congress, but earlier than election to the presidency for those historically denied equality and/or political participation, such as African-Americans and women. Thus Roger Brooke *Taney, the first Catholic justice, was chosen in 1836; Louis D. *Brandeis, the first Jewish appointee, became a member in 1916; Thurgood *Marshall, the first African-American, was chosen in 1967; and the first woman, Sandra Day *O’Connor, was selected in 1981.

The background of an individual is important or, in some instances, essential to selection to the Court. Background includes an individual’s social status, paternal occupation, patterns of occupational “heredity,” ethnicity, religion, and education. With exceedingly few exceptions, Supreme Court justices have been white males chosen past middle age from socially and economically advantaged families: Protestant by religion and high status by denomination, descendants of natives of the British Isles, and recipients of undergraduate education in schools of national reputation. Upper-class bias has lessened, but by no means disappeared, in the early twenty-first century. Career characteristics such as political party affiliation, legal and political philosophy, political involvement, previous judicial experience, interest group affinity (for example, Stephen J. *Field’s relationship with railroad magnates), membership and leadership in important bar groups (for example, William Howard *Taft’s presidency of the American Bar Association or Thurgood *Marshall’s role as counsel for the NAACP *Legal Defense Fund) also have been factors in selection to the Court.

Perhaps the most intensely debated aspect of the significance of background and career characteristics is whether such attributes bear any relationship to the justices’ decision making. One persistently argued position is that background and career factors are neutralized by or virtually eliminated by the judicial role itself. Justice Felix *Frankfurter provided one of the clearest statements of this position in recusing himself in the so-called Captive Audience Case. Frankfurter asserted in Public Utilities Commission v. Pollak (1952) that

There is a good deal of shallow talk that the judicial role does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline, and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. (pp. 466–467)

Several generations of scholars, however, have found a good deal of evidence confirming the significance of party and other background variables, including Rodney Mott in the 1930s, Herman Pritchett in the 1940s, and an increasingly larger number of scholars thereafter. A scholarly reappraisal occurred in the 1960s when Bowen and Grossman, among others, raised questions about the behavioral conceptualization of background variables in relation to judicial voting behavior and the extent to which such variables actually explain judicial voting behavior. On the other hand, summing up the empirical evidence obtained by the end of the 1980s, C. Neal Tate concluded that background attributes explained significant voting differences in cases involving civil rights and liberties as well as economic issues.

Donald R. Bowen, “The Explanation of Judicial Voting Behavior from Sociological Characteristics of Judges” (Ph.D. diss., Yale University, 1965). Joel B. Grossman, “Social Backgrounds and Judicial Decision-making,” (p. 936) Harvard Law Review 79 (1966): 1551–1564. C. Neal Tate, “Personal Attributes as Explanations of Supreme Court Justices’ Decision Making,” in Courts in American Politics, edited by Henry M. Glick (1990), pp. 261–275.

John R. Schmidhauser