I. Introduction

Judicial conflict on the United States Supreme Court is not new.[1] The term “dissenter” carries rich historical meaning, reminding us of Supreme Court Justices such as Justices Oliver Wendell Holmes, Charles Evan Hughes, Louis D. Brandeis, and John Marshall Harlan.  The dissenter has traditionally been viewed with skepticism, scorned for challenging the collective thinking of the Court.  The worry is that dissent may impair the legitimacy of judicial decisions by reducing public respect for the Court’s rulings.  However, dissent could also be a function of productive debate since in the modern era of ideological polarization and partisan divide, it is not realistic to expect all nine Justices to hold similar views on each case.  If dissent is viewed in this way, it is simply a reflection of the individuality of the Justices.

The right to dissent has nevertheless become an accepted part of the judicial process and a necessary form of expression for Supreme Court Justices serving on a dynamic Court.[2] The remaining puzzle is to explain the increasing frequency of dissent, not to engage in a normative debate over its impact.  Even more specifically, what happened to the norm of consensus?  What accounts for the dramatic rise in dissent during the late 1930s and why has it continued to exist at such a historically high rate?  Analyzing this issue is important for a number of reasons.  First, the fact that Supreme Court Justices are appointed for life implies that, unlike members of Congress, they need not curry favor with the public.  Second, because different presidents often appoint them, there may be a natural tendency towards adamant disagreement arising out of partisan or ideological beliefs.  Third, Supreme Court Justices may fight with one another as frequently as do members of Congress, just not in the same way.  In fact, in an attempt to promote public institutional solidarity, suppression of the proclivity for conflict may actually intensify subterranean grudges and hostility.  Additionally, many members of the Supreme Court are strong-willed veterans who may be concerned with enhancing their position on the Court.

This Essay will contend that judicial conflict is a reflection of personal animosity arising from intrinsic personality differences.  In making this argument, this Essay will address two questions: first, how does personal antipathy affect decision-making; and second, to what extent does antipathy influence the writing of dissenting opinions by Supreme Court Justices?  To answer these questions, both empirical and descriptive analyses were conducted.  On the empirical side, 1,000 Supreme Court cases were sampled from 1945 to 2001; on the descriptive side, extensive research was conducted utilizing a variety of sources including memories and autobiographies of Supreme Court Justices.  In Part II, I provide a short background on the history of unanimous decision-making by the Supreme Court up until the 1930s and offer competing explanations for the dramatic rise in dissension in the late 1930s.  Part III will then introduce this Essay’s methodology.  Part IV will discuss one principle case study from these results – the Douglas-Frankfurter feud.  Part V will conclude.

1. II. Background

During the early development of the U.S. Supreme Court, Chief Justice Marshall initiated a practice of reporting unanimous decisions.  Through this emerging norm of unanimity, Justice Marshall presented decisions as the “opinion of the Court,” in contrast to the British-style practice of seriatim opinion making.[3] However, by the late 1930s dissent rose dramatically.  During this period, Supreme Court Justices wrote sharply increasing numbers of concurring and dissenting opinions, thus decreasing the number of consensual opinions handed down by the Court.  After the 1940s, Supreme Court Justices have more or less routinely dissented when they disagreed with the majority holding.

Public law scholarship has focused much of its attention on explaining this rising frequency of dissension.[4] For instance, some judicial scholars suggest that changes in the sociopolitical fabric of the nation, such as the Great Depression and partisan realignment, affected how the Supreme Court went about selecting cases.[5] The argument is that these historical events shifted the Court’s agenda from an economic-centered docket to one dominated by social policy.[6] For example, starting from the 1960s the nature of issues the Supreme Court considered became increasingly broader and more complex; the percentage of constitutional questions increased while the delegation of narrower statutory questions was given to other courts.[7] Other scholars contend that the decline in consensus on the Supreme Court and the greater premium placed on individual opinions may have resulted from changing norms of opinion writing.[8] In other words, the proliferation of dissenting opinions resulted from a greater workload and a consequent lack of time to work through differing opinions.  This is evident by the increase in the length of the opinions themselves.[9] According to David O’Brien, opinions in 1938 averaged about eight pages, by 1970 opinions were slightly more than nine pages, and by the 1980s eleven pages.[10] Moreover, when the Court’s docket increased, Congress in 1919 allowed each Justice to employ one full time law clerk.[11] Since that time case filings had increased so dramatically that Justices were writing upwards of 300 opinions per term,[12] which inevitably invited law clerks to become an integral part of the judicial process.  As a result, law clerks directly assisted Supreme Court Justices in the core procedural tasks of case selection, opinion drafting, writing and editing, all of which permitted the Justices to write more dissenting opinions.  In fact, Bradley Best argues that the increasing presence of law clerks on the Supreme Court has fundamentally changed the task environment by “altering the set of incentives encountered by [J]ustices in the opinion writing process” since it “diminished the frequency of interaction among the [J]ustices, encouraging each [J]ustice to act individually and conduct his or her business on the Court as but one of ‘nine small, independent little law firms.’”[13] In short, the Supreme Court’s workload, changing norms of opinion writing, the rising number of law clerks and their role in judicial procedure, along with institutional changes, and the consequent shift in the Court’s docket to civil liberty cases may indeed have encouraged fragmentation in the collective opinion writing process.

1. III. Methodology

Absent in the scholarship, however, is an analysis of how and to what extent personal relationships between Justices may affect their opinion writing behaviors.  Hence, this Essay is principally interested in the ways in which Supreme Court Justices respond to one another when in opposition.  That is, how Court fragmentation, in the form of dissents, create cohesive and stable bloc coalitions that structure relations between two or more Justices.  Seen from this angle, I am interested in how, if at all, coalitions form based on personal antipathy.

The unit of analysis was a single U.S. Supreme Court decision.  The total population of the research included all U.S. Supreme Court decisions from 1945 to 2002.  I chose to begin sampling at 1945 because this was not only the year in which dissent rose dramatically but it was also the point in which dissent patterns began to evidence continuous conflict on the Court.  I examined and analyzed approximately 1,000 cases between the years of 1945−2002.

Data analysis proceeded as follows;  First, I collected the following information: (1) which, if any, Justice wrote separate opinions in the form of dissents or concurrences, and (2) of those Justices that wrote separate opinions, did they write the opinion independently or together with other Justices, if the latter, with whom.[14] Secondly, I examined the Warren and Burger courts and analyzed cases in which all the Justices participated.  Next, I collected the following information for each court: (1) the total number of dissents per court; (2) the total number of written dissents per Justice; (3) the percentage of dissenting opinions written by each Justice; (4) the number of times Justices served together on a Court; (5) the number of times they opposed each other; and (5) the frequency of opposition between pairs of Justices.  Subsequently, I generated a separate database consisting of patterns of written dissent for each Justice and ranked the dyads from highest to lowest frequencies of opposition.  These dyads were then coded as “Hostile,” “Antipathy,” “Collegial disagreement,” or “Friendship” according to that frequency.[15]

This Essay’s hypothesis predicted the following: if Justice X does not like Justice Y, then A/B is greater than C/D where A represents the total number of times Justice X writes a dissenting opinion when Justice Y is in the majority; B is the number of times Justice Y is in the majority; C represents the total number of times Justice X writes a dissenting opinion when Justice Y is in the minority; and D is the number of times Justice Y is in the minority.  In other words, strong personal antipathy between Justice X and Justice Y motivates Justice X to craft more dissenting opinions when Justice Y is on the opposite side (and thus voting against him) than when Justice Y is on the same side as Justice X (and thus voting with him).  Therefore, when Justice Y is in the majority, Justice X will be more inclined to write against Justice Y.

1. IV. Discussion of Findings

In this Part I present the Douglas-Frankfurter feud, as one case example, to illustrate how

personal antipathy drives dissension on the Supreme Court.  I found that Justice Douglas wrote more dissenting opinions against Justice Frankfurter than any other Justice.  For example, when Justice Frankfurter was in the majority, Justice Douglas wrote dissents at 17.0% whereas when Justice Harlan and Justice Stewart were in the majority, he only wrote 12.2% and 10.1% respectively.  By comparison, when Justice Douglas’s “friends” were on the opposing side, he authored very few dissenting opinions, only writing 4.0% with Justice Black, 4.3% with Justice Brennan and 4.2% with Justice Fortas.

In the same way, Justice Frankfurter wrote more dissents against Justice Douglas than any other Justice on the Warren Court.  For instance, when Justice Douglas was in the majority, Justice Frankfurter wrote an opinion 16.1% compared to 11.8% and 11.3% when responding to Justice Black and Justice Warren respectively.  By further comparison, when Justice Frankfurter’s friends were on the opposing side, Justice Frankfurter crafted very few opinions, writing only 5.0% with Justice Whittaker and 6.1% with Justice Harlan.

Further evidence of these patterns is apparent in the Douglas, Black, and Frankfurter triad.  Just as hostility encourages Justices to write more dissenting opinions against his colleague, this Essay predicts that friendship may discourage Justices to write opinions.  For example, Justice Douglas was more inclined to author a dissenting opinion when he and Justice Frankfurter were on opposite sides of a case then when Justice Douglas was on the same side as Justice Black.  Justice Black’s position in the minority could have encouraged Justice Douglas to write more opinions against his “enemies.”  Hence, when Justice Frankfurter and Justice Black were in the majority, Justice Douglas wrote sparingly at 4.1% whereas when Justice Black was in the minority with Justice Douglas and Justice Frankfurter was correspondingly in the majority, Justice Douglas wrote profusely at 41.1%.  Similarly, when Justice Whittaker was substituted for Justice Black as the independent variable, Justice Frankfurter authored more dissenting opinions (42.1%) when he and Justice Douglas were on opposite sides than when he and Justice Whittaker were on the same side (8.5%).[16] Together, both of these findings suggest that personal friendship and personal hostility may indeed affect opinion writing behavior.

With respect to personal hostility, there is ample evidence in the literature suggesting that Justice Douglas and Justice Frankfurter simply despised each other and did not shy away from expressing their animosity publicly.[17] Justice Frankfurter once wrote that Justice Douglas was “one of the two completely evil men” he had ever known.[18] For his part, Justice Douglas insulted Justice Frankfurter by telling him that he and Justice Black viewed him as a nut to be cracked.[19] Justice Frankfurter did not take this comments lightly.[20]

This bitter relationship was partly due to a clash in personalities.  During Justice Frankfurter’s years on the Court, he not only misread social situations and personalized issues but he also treated his colleagues in a condescending manner.[21] For instance, just as Justice Frankfurter had taught Harvard law students to see the proper role of the Court and the limits of its jurisdiction, he now sought to instruct his brethren on proper constitutional adjudication.  But these Justice were not his students but his equals.[22] They were appointed to make independent judgments as the nation’s highest court.  The “tragedy of Mr. Justice Frankfurter,” Melvin Urofsky writes, “is that he became the prisoner of an idea—judicial restraint” by trying to mold the Court towards this ideal.[23]

Moreover, Justice Frankfurter repeatedly assumed the role of law school professor by treating his colleagues as second-rate law students who needed to be properly directed and coached.[24] For instance, when seeking to gain Justice Reed’s vote in one case, Justice Frankfurter told him that just as he instructed his Harvard law students to read a case three times, Justice Reed should do so likewise.[25] Justice Stewart also recalled that if Justice Frankfurter was interested in a particular case, he would “speak for fifty minutes, no more or less, because that was the length of the lecture at the Harvard law school.”[26] Urofsky recounts Justice Stewart’s memories of Justice Douglas being “absolutely devastate[ed] after one of [Frankfurter’s] lectures.”  After one of the many conferences, Justice Douglas announced, “I agreed in the conclusion that Felix has just announced.  But he’s talked me out of it.”[27] Many times Justice Douglas would simply get bored and frustrated during Justice Frankfurter’s lectures, and as a result he would “go over to a sofa, where he would ignore the discussion.”[28]

Justice Frankfurter’s treatment of his brethren stemmed in part from his expectation to become a leader of the Court.  He constantly sought allies in his ongoing struggle with Justice Douglas and Justice Black.  Justice Frankfurter’s biographers note that Justice Frankfurter “lavished” attention on new appointees and when they began to adopt positions on legal issues of which he disapproved; Justice Frankfurter would “turn on him, criticizing him behind his back and eventually deeming him an enemy.”[29] Justice Frankfurter’s habit of “deeming” those he disliked as his “enemy” was perhaps due to his misinterpretation of the situation as well as his own personalization of the issues.[30] For instance, when his colleagues refused to follow his lead in Minersville School District v. Gobitis,[31] Justice Frankfurter would vilify them as one of the “Axis,” surely the most despicable image imaginable during World War II.  His personal hatred of Justice Douglas also surfaced in one of his memoirs.  Justice Frankfurter called his colleague “malignant,” “narrow minded,” and “the most cynical shamelessly amoral character I’ve ever known.”[32] Justice Douglas was equally caustic, calling Justice Frankfurter “Der Fuehrer,” “the Little Giant,” “Machiavellian,” “divisive,” and a “prevaricator.”[33] Justice Douglas saw Justice Frankfurter as a cynic who had “no sacred principle . . . Every principle is made for manipulation . . . I would say that Frankfurter’s influence has been toward the disappearance of the ethical principle from the law.”[34]

This personal animosity often led to difficult moments not only for Justice Douglas and Justice Frankfurter but also for their colleagues on the bench.  Justice Brennan recollected times when, during a conference session, Justice Douglas would get up from the table, sit on a couch and read his mail while Justice Frankfurter, as was often his habit, lectured.[35] In November of 1960, Justice Douglas went as far as drafting a memo to the Conference threatening not to attend the Conference Sessions so long as Justice Frankfurter was on the bench:

“The continuous violent outbursts against me in Conference by my brother Frankfurter give me great concern.  They do not bother me for I have been on the huntings too long.  But he’s an ill man; and these violent outburst create a fear in my heart that one of them may be his end.  I do not consciously do anything to annoy him.  But twenty odd years have shown that I am a disturbing symbol in his life.  His outbursts against me are increasing in intensity.  In the interest of his health and long life I have reluctantly concluded to participate in no more conferences while he is on the Court.  For the cert lists, I will leave my vote.  On argued cases, I will leave a short summary of my view.”[36]

Chief Justice Earl Warren, being the proficient social and task leader that he was, was finally able to convince Justice Douglas to continue attending the Conference Sessions.  The tension, however, did not subside.

1. V. Conclusion

A number of conclusions emerge from this study.  First, there are two principles sources of conflict: professional disputes emanating from doctrinal differences and animosity emerging from clashes in personality.  Preliminary findings suggest that while doctrinal differences between colleagues sunder judicial unanimity, the personal idiosyncrasies of individual Justices also encourage passionate exchange, give rise to dysfunctional relationships, and frame disruptive working environments.  Specifically, the intensity of conflict and the proclivity to dissent increased in proportion to the degree of personal animosity internalized between Justices. Enduring animosity between Justices William Douglas and Felix Frankfurter revealed that when either Justice voted against the majority opinion, that Justice was more likely to write a written opinion as part of his dissent.  In other words, in most cases, strong personal antipathy between two Justices was a reason for them to issue more dissenting opinions.

There are also broad implications that emerge from this study.  First, the lack of consensual decisions affects the position of the Supreme Court in American politics since frequent dissension, motivated by personal antipathy, undercuts the legitimacy and authoritativeness of Court rulings.  Furthermore, the personality of future Justices could, in part, determine the dynamics of Court rulings as well.  Further analysis of interpersonal relationships of Supreme Court Justices would, therefore, be a fruitful area of continuing judicial scholarship.