law and conflict resolution || conflict and its resolution in the supreme court

Conflict and Its Resolution in the Supreme CourtAuthor(s): David J. DanelskiSource: The Journal of Conflict Resolution, Vol. 11, No. 1, Law and Conflict Resolution (Mar.,1967), pp. 71-86Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/172932 .

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source of primary data: hundreds of thou- sands

of

documents in the private papers

of

former

justices--conference

notes,

intra-

court communications, draft opinions, slip opinions with comments on them, memo- randa, memoirs, and so forth. Those are the data underlying the present study. Although this inquiry is to a

large

extent exploratory, it attempts nonetheless

to

be rigorous by defining

key

concepts opera- tionally and presenting evidence in support of hypotheses where

it

is available. Yet it would be a mistake

to

view this study as more than a tentative presentation

of

concepts and hypotheses that may be useful

in

future research concerning conflict and

its

resolution

in

the Supreme Court ..... The discussion that follows begins with a consideration

of thepositive and

negative consequences

of

conflict in the Court. Then conflict

resolution

is considered in terms

of

concepts useful in explaining judicial

decision-making-namely,

values, role, leadership, and personality, in that order, The order

of

presentation is important to the discussion,

but it

does not necessarily indicate the relative importance

of

the concepts

in

understanding conflict

and

its resolution in the Court.

Intracourt

Conflict Conflict

in

the Court can be identified as "We

are

very quiet there," Justice Holmes once said

of

the Supreme Court,

"but

it is the quiet

of

a storm centre, as we all know" (1920,

p. 292).

The metaphor is apt,

for

throughout American history important political disputes have

moved

centripetally to the Court

for

authoritative settlement. Since

decision-making in

the Court takes place behind closed doors, it appears to be quiet, and compared to other kinds

of

political

decision-making,

it

is.

But that is

not

to say it is free

of

conflict. On the contrary, conflict characterizes the Court because it is a microcosm generating its

own

systemic conflicts

while

attempting to settle disputes brought before it. Behavior

of

Supreme Court justices indicating conflict

and its

resolution constitutes a significant sector

of

activity

we call law

in action; thus it is surprising that the

subject

has received little scholarly attention. The main reason

for

this, apparently, is that only a

few

persons are in

a

position directly to observe decision-making in the

Court--the

justices themselves and to some extent their

law

clerks and a

few others--and

they are not inclined

to

write about

it, at

least

not

systematically. There is, however, another

I

should

like

to express

my

gratitude to Walter F. Murphy

of

Princeton University

for

having read and commented on an earlier draft

of

this article. Conflict and its resolution in the Supreme Court DAVID J.

DANELSKI

Department

of

Political Science, Yale

University



(1)

overt and public,

(2)

overt and nonpublic, and

(3)

covert. Overt public

conflict

is disagreement manifested usually in officially reported

votes

and

in

dissenting and concurring opinions,

but it

may

be

manifested in

other ways--e.g.,

the remarks of

justices

in open court. Overt nonpublic

conflict

is disagreement manifested within the

Court--e.g.,

the expression of divergent views in conference. If

such

conflict

is

neither resolved nor suppressed,

it

usually becomes public. Covert

conflict

is disagree-

ment not

directly expressed in

the Court's

decisional process. Often

it

is expressed in

justices'

intimate correspondence with members

of

their families or

close

friends. Overt public

conflict

has both positive

and

negative consequences

for

dispute

set-

tlement. The dissenting opinion has been said to

be

useful because it appeals

"to the

intelligence

of

a future day" (Hughes, 1928, p.

68),

thereby shaping and altering

the

course

of the law; it

assures counsel and

the

public that

decision'making

is

not

perfunc-

tory;: and it

"sounds a warning note that legal doctrine must not

be

pressed

too

far"

(Stone,

1942, p.

519).

At times

it

also gives hope

of

eventual victory

to losing litigants

and

the

interests

they ~represent,

thus mak-

ing

their defeat temporarily acceptable. On

the

other hand, dissents sometimes aggra- vate disputes

in

society. A dissenting opinion may

be at once

a symbol and a source

of

arguments

for

those who oppose a Court

decisiom2

On occasion, also, dissenters have

2

For example'

the Vh'ginia

Commission on Constitutional

Government--an

official agency

of the

Commonwealth

of Virginia--recently

reprinted Justice

Harlan's

dissenting opinion

in the

Supreme

Court's

obscenity decision

con-

cerning

John Cleland's

Memoirs

of

a Woman

of

Pleasure. The following is on

the cover of

the

Commission's

booklet: SEX THE SUPREME COURT

72

DAVID

J. DANELSKI

forced the majority to take up highly disputed issues that would not have otherwise been considered in the

Court's

opinion (Jackson, 1955, p. 19). That occurred in the Dred

Scott

Case (see Warren, 1926, II, 293- 95). But, according to many judges, the main negative consequence

of overt

public conflict

is the

undermining

of

popular confidence in the Court's authority. Judge Learned

Hand put

it this way: "Disunity cancels the impact of

monolithicsolidarity

on which the authority

of

a bench

of

judges so largely depends" (1958, p. 72). That has been a basic hypothesis underlying intracourt conflict resolution

all

through history. Public expression

of

disagreement also has positive and negative consequences

fox'

conflict resolution within the Court. Justice Douglas has said that "the right to dissent

is the

only thing that makes life tolerable

for

a

judge

of an

appelIate

court" (1960, p. 4). Often, after having dissented, Justice

Stone

used to say: "One has to live with himself." Presumably expression

of

dissent also made

it

easier for him to

live

(and let live) with his

colleagues.a

Corn- AND THE STATES THE SUPREME COURT DEALS WITH DIRT. WHAT IT IS

:..

AND WHO

IS

TO

SAY

WHAT IT IS Mr.JUSTICE HARLAN dissents

in

the case of Fanny Hill

a

There is little doubt that public expression of dissent has cathartic value, and apparently this conclusion applies to courts in other parts of the world. A current study

of

the German Federal Constitutional Court by Donald

P.

Kommers will shed some light on this matter in Germany. For a discussion

of

attitudes toward dissent in German courts, See Weyrauch (1964,

pp. 220-21

). The positive consequences of public expression of dissent

go

beyond catharsis. For example, a former

chief

:justice of

the

Supreme Court

of

Japan told me in an

CONFLICT

RESOLUTION

VOLUI~IE XI NUiNIBER 1



73 CONFLICT RESOLUTION IN THE SUPREME COURT

mcnts

in newspapers,

law

reviews, and bar journals praising specific dissenting or

concurring

opinions go a long way in

healbig

egos bruised in

intracourt

conflict. The same is true of laudatory letters, especially from reference persons.

But

dissenting opinions,

or

the manner in

which

they are

written,4

may be resented by colleagues; they may

thus

inflame present disagreements and pro- vide fuel for future ones. Overt nonpublic conflict often makes for alertness, clarifies issues, raises alternative approaches

to

decisions,

and tests the

intensity of justices' commitments

to

given positions. The fact that it is both overt and nonpublic is important, for conflict is ini- tially brought into the open only

for

those

in

the Court to observe. Thus

justices can

proceed hypothetically,

play

devil's advo-

cate,

and feel free to change their positions if persuaded by their colleagues, or,

if

not persuaded, to acquiesce in silence. Such conflict has many positive consequences, but when it gets out of

hand--i.e.,

becomes highly emotional, tense, and

antagonistic--

most

of

its consequences are negative. Co-

vert

disagreement increases because some justices in such situations tend to withdraw. Decision-making becomes less rational and less collegial. Overt public conflict in-

creases--both

in terms

of

dissenting and concurring opinions and also in terms

of

less legitimate forms

of

expression (e.g.,

un-

charitable remarks about colleagues in open court),

all

of which tend to diminish the

Court's

authority. Conflict

in

the Court, then, has its uses,

but it

is clear that conflict must be con- stantly managed so that the Court can achieve its basic

purposes~authoritative

settlement

of

disputes brought before it and continuance as a highly rational, efficient, collegial decision-making

body.

Values Value disparity underlies a considerable amount

of intracourt

conflict. That is in- evitable in view

of

the kinds

of

cases that come to the Supreme Court

for

decision. They are the difficult cases, those

for

which legal guidelines are unclear or involve

fun-

damental value conflicts in society. Issues in many

of

those cases are to be answered by interpretation

of

vague clauses in the Constitution, and in such matters stare

decisis

carries little weight. As one member

of

the Court put it, a judge in construing the Con- stitution "often rejects the gloss which his predecessors put on it. For the gloss may, in his view, offend the spirit

of

the Constitu- tion or do violence to it... [I]t is the Con- stitution which we have sworn to defend, not some predecessor's interpretation

of

it" (Douglas, 1948, p. 106). Obviously a

jus-

tice's values are related to his view

of

the spirit of the Constitution, and that view not infrequently conflicts with the views

of

his colleagues. Values are also the root

of

dissension in cases involving statutory construction. Leg- islation often represents uneasy compromises of conflicting values, compromises that leave the choice

of

competing values to judges. Thus the arena

of

conflict moves from the legislature to the courts, where similar cleavages are manifested. Often, because of legislative compromises, statutory language is vague, containing terms like interview that ff he had not had the right to dissent, he could not in good conscience have remained on the Court after the first case was decided in which he disagreed with the

ma-

jority.

4"The

technique

of

the dissenter," said Justice Jackson (1955,

pp.

18-19), "often is to

exaggerate

the holding of the Court beyond the meaning of the majority and then

blast

away at the excess."



DAVID

I. DANELSK1

74

"just,"

"reasonable," and

"fair."

A

judge's

reaction

to such

language, said Justice Douglas, "is bound

to

be like his reaction to the generalities

of

constitutional clauses. The language that he construes gathers meaning and overtones, significance and relevancy in terms

of

his own

life

and experience, his personal

set of

values..." (Douglas,

1948,

pp. 105-06). That is

not to

say that Supreme Court

justices

decide

cases

solely in terms

of

personal predilec- tions. Values operate more subtly in the decisional process,

but

they operate nonetheless; they are what Holmes called

the "can't

helps." Recognizing that, Douglas concluded that judges "must be free

to choose--and,

being

free,

must have

the

daring to

let

their inner conscience cast their votes" (

1948,

p.

107).

Clearly, then, values are important in explaining conflict and

its

resolution in

the

Court,

and

operational definition

is

a first step in such explanation. Values

are

viewed here as hypothetical constructs anchored

in quantifiable

human behavior. The analyst infers them

from

evaluations, which are units

of

speech or other activity indicating that a justice regards a thing, condition, property, event, action, or idea as good, useful, or desirable, either in itself or

for

the achievement

of

some purpose (see Brecht, 1959, p.

119). After

evaluations are identified, they are labeled

in

terms

of

specific

value constructs--e.g.,

freedom, equality, and tradition. Values

are

always postulated for purposes

of

inquiry. They are constructs,

not

empirical entities; their scientific status tums entirely on whether they are validly anchored in evaluations and whether evaluations are validly labeled. In order to determine value disparity among justices, values must be ordered by a common method. The simplest method is the construction

of

hierarchical profiles based on the frequency

of

evaluations in specific

value

categories. The method is based on the assumption that top values are expressed more frequently than lesser values. A more precise way

of

ordering values is measurement

of

value dimensions. Perhaps the most important dimension is intensity, which refers to the strength

of

emotional attachment to a value. Another dimension is congruency, which refers to the harmony a specific

value

has with other values

in

the same profile.

If

there are no conflicting values and a number

of

reinforcing values, then a

value

is said to possess high congruency. Still another dimension is cognitive completeness, which here refers to a justice's readiness to perceive a

set of

phenomena

in

terms

of

a specific

value--the

readiness being based on the breadth and depth

of

experience concerning that

value.

For example,

if

a

justice,

in his years

at

the bar, had tried a

large

number

of

cases involving

due

process issues, his value of due process is

apt to be

more

cognitively

complete when he ascends the

bench

than that

of

a justice who seldom handled

such cases

during

his

legal career. Experience increas- ing cognitive completeness often occurs

in

the judicial process. After a number

of

due process

cases

are considered and decided by

the

latter justice

in

the above example, his value

of

due process is likely

to

become more

cognitively

complete. A

recentstudy (Danelski, 1966)

provides some confirmation

of the

hypothesis that value disparity is significantly related to overt conflict in the Court. The most im-

portant

overt nonpublic conflict in the Court in the mid-1930s concerned

the

limits

of

constitutional protection

of

property rights, and the leading proponents

of

divergent views in conference on this

subject,

according to Chief Justice Hughes, were

NUMBErr

1 CONFLICT RESOLUTION VOLUME

XI



CONFLICT RESOLUTION IN

THE

SUPREME COURT 75 Justices Butler and Brandeis. Analysis of comparable public addresses by Butler and Brandeis prior to their appointments revealed value profiles indicating substantial disparity concerning

laissez-faire,

which was positively valued by Butler and negatively valued by Brandeis. Their respective laissez- faire values possessed high intensity, congruency, and cognitive completeness. Thus it

is

not surprising that the same

value

disparity was manifested as overt public con-

flict.

This was clearly shown in their behavior as lone dissenters

in

the seventeen years they were jointly Court members. It was completely consistent with their respective

laissez-faire

value positions. Cumula- tive scaling

of all

divided decisions involving government and the economy during the 1935 and 1936 terms

of

the Court and factor analysis

of all

divided decisions

for

those terms provided further confirmation

of

the relationship between

the value dis-

parity

of

Butler and Brandeis concerning

laissez-faire

and their publicly expressed

disagreement.~

Value

disparity is related to conflict in the Court to the extent that values are

sig-

nificant in

its

decisions, and that depends on the approach taken to

decision-making. If

justices approach decisions with

the

idea

of

doing justice

in

each case, as

Justice

Rutledge

is

said

to

have done, then decisions

can

be explained largely in terms

of

value disparity. Each

of Rutledge's

decisions, said Chief

Justice

Vinson, was

"con-

sistent with

his

instinctive sense

of

right and wrong. Regardless

of

divergence

of

opinion, no colleague ever had doubt that Wiley

Rutledge

believed he was right"

(1950,

p.

xxvii).

When specifically asked

how

he de-

cided

cases,

Rutledge

said he studied

the

briefs and records

"to

determine

if

possible on which side justice

lay. If

that was

clear,

he searched the

law for

a legitimate means

of

rendering justice.

It

was usually possible,

he

said,

to

find a route that satis- fied both the requirements

of

the case and sound principles

of law" (Brant,

1965, p.

xii). Conflict

resolution in a court in which

the

justices decided cases on the basis of their individual notions

of

justice would be difficult

at

best,

for

the reasons given by Ross

(1959, pp.

274-75). "The ideology

of

justice," Ross wrote,

"leads

to

implaca- bility

and conflict, since on the one hand it incites to the belief that one's demand

is not

merely the expression

of

a certain interest with opposing interests,

but

that it possesses a higher, absolute validity; and on

the

other hand it precludes

all

rational argument and discussion

of

a settlement." The last part

of Ross's

statement is extreme and probably

would not

have applied to Rut- ledge; nonetheless, when a justice argues in terms

of his

personal conception

of

justice, opponents cannot prove

him

wrong. They

can

point

out

the consequences

of

his position,

but if

that is unconvincing, there is, as a practical matter, little more that can be done except

to

agree to disagree. The classic statement concerning approaches

to

appellate

decision-making was made

by

Cardozo (1921). Each of the

conscious methods

of

decision he dis-

cussed--philosophy

(by which he meant

the

logical application

of

precedents and

legal

principles

to

cases), history, tradition, and

sociology--can

proceed in terms

of

empirical

referents. But

that

is not

to say that personal values are

not

involved in their application. For

example, in

applying legal principles to a case, a value choice

may

be involved

in the

selection

of

one set

5

The work

of

Pritchett (1948) and Schubert (1965)

can also

be interpreted as indicating that conflict in

the

Court stems from

value

disparity.



76 DAVID

J. DANELSKI

of

legal principles instead

of

another. Never- theless, precedents giving rise to

legal

principles are empirical phenomena that can

be

examined and discussed

more

or less ob- jectively, and the rules

of

logic are the

same for all

justices. The historical background

of legal

institutions and rules and their de- velopment, as well as

the

existence

of cus-

toms, are matters which,

if

disputed, can in principle be proven

empirically.

The method

of

sociology deals specifically with values, but the values upon which decisions based on this method rest are supposed to be society's, not the justices' (Cardozo,

1921,

p.

108). One

of

the difficulties here is that a justice's perceptions

of

societal values are related

to

and conditioned by his personal values.

Yet

societal values can,

at

least in principle, be ascertained

empirically

(see

Brecht, 1959,

pp.

148-50).

Evidence

can

be

marshalled,

and there are methods

for

determining its reliability. Often, however, there is no reliable evidence.

"At

those times," Cardozo wrote, "[the justice] must put himself as best

he

can within the heart and mind

of

others, and frame

his

estimate

of

values by the truth thus revealed.

Objec- tive

tests may fail him, or may be so

con-

fused as to bewilder. He must then

look

within himself" (1928, pp. 55-56). Thus

the

approach taken determines the importance of values in decision-making;

but

regardless

of

approach, values are always to some extent relevant, and to the extent that they are,

ceteris paribus,

value disparity is

apt

to be related to conflict. Role

In

a

five-to-four

decision that rejected a condemned man's constitutional argument, Justice Frankfurter explained his majority vote with these words:

"I

cannot

rid

myself

of the

conviction that were

I

to hold that Louisiana

would

trangress

the Due

Process Clause if the State were allowed, in

the

precise circumstances before us,

to

carry out

the

death sentence,

I

would be enforcing

my

private

view

rather than that consensus

of

society's opinion,

which, for

purposes

of

due process,

is thestandard

enjoined by the Constitution" (1947, p. 471).

In

other words, Frankfurter said his vote turned

on

his conception

of

his role, which he saw as requiring him to decide the case in terms of society's values and

not

his

own.? In

less dramatic

cases,

role conceptions also intervene and seem

at

times

to

determine judicial behavior. Thus role as a variable in judicial

decision-making can

make

for

agreement among justices with diverse values,

but

disparity

of

role conceptions, like value disparity, can also make

for intracourt

conflict. A role is defined here as a

set of normafive

expectations concerning the official behavior

of

an incumbent

of

a Supreme Court position (see Gross

et al., 1957).

The most im-

portant

position is,

of

course, that

of

Court member,

but

in addition, a justice may

oc-

cupy other

positions--e.g., chief

justice or senior associate justice. Expectations are

normafive, not predictivemi.e.,

they indi-

cate

what a

justice,

because

of

his position, should do. Although their content is nor- mative, expectations are always ascertained

empirically;

the analyst infers them from verbal or nonverbal behavior in

the

same way he infers values from evaluations. In determining normativeness

of

expectations,

o

Although Justice

Frankfurter's

explanation

of

his vote

in

the capital punishment case may be accurate, an explanation in terms

of role alone

is too simple. As Professor Murphy pointed out when he read a draft

of

this article, Justice Frankfurter would have to perceive a conflict between his values and society's before his

role

conception

would be relevant--and

even then, as was pointed

out

earlier, his

per-

ception

of

societal values

would be

related to and conditioned by

his

personal

values.

CONFLICT

lIESOLUTION VOLUa~tlE XI ~UM~ER

1



CONFLICT RESOLUTION

IN THE

SUPREME COURT 77 contextual considerations are important,

for

a justice's actual behavior does not neces-

sarily

indicate

what

he, as a Court member, believes he should do. The most relevant expectations are those held

by

the justices themselves,

but

the expectations

of

others are also relevant ff they

are

connected with a justice's official behavior. Since sets of expectations defining roles are analogues

of

value profiles, they can be used similarly

to

determine disparity

and

agreement

of

role conceptions among

jus-

tices. Agreement on the basic judicial role

can

overcome considerable value disparity.

For

example,

if

all the justices

in

the capital- punishment case mentioned above had agreed with

Frankfurter's

conception

of

their role in such

cases--i.e.,

they should

determinethe

requirements

of

due process in terms

of

prevailing societal values then

the

basic issue would be more one

of

fact than one

of

value, and so

it

would be more amenable to empirical solution. The fact that justices agree that precedent should

be

followed in certain cases undoubtedly makes

for

agreement despite value disparity.

But

where justices have divergent role

concep-

tions--e.g., where one justice holds

self-

restraint expectations

and

a number

of

his colleagues

do not--conflict

is likely despite substantial value agreement. That appears to have been Justice

Stone's

situation in relation to his conservative

col-

leagues in the

1930s.

He felt that

if

they

had

understood his conception

of

"the true nature

of

the judicial function," they would have

acted

with restraint, as he

did,

when the constitutionality

of

economic legislation

was

challenged

(Mason, 1956,

p,

412).7

And it appears that some of Frankfurter's disagreement with colleagues like Black and Douglas

in

civil liberties cases in the

late 1950s

was due to divergent role conceptions (see Grossman, 1963), Finally, complete agreement on role conceptions does

not

necessarily mean an absence

of

conflict. On the contrary, the role conception agreed upon, e.g., doing justice in each ease, may lead to conflict. The possibility

of

a reinforcing relationship between basic role conceptions and values cannot be overlooked. For example, Justice

Butler believed

that the justices should adhere to precedent rather strictly and not interpret the Constitution

flexibly, butMgiven

the state of precedents at the time concerning the constitutionality

of

gov- ernmental regulation

of businessmButler's role

conceptions and top values were

com-

patible and

reinforcingl

Conversely, the same

was

true

for

Justice Brandeis

in

regard to his role conception

of self-restraint

and his value

of

economic regulation by government. Thus, although these

justicesoften

justified their positions with role arguments, their values at times appear to have been the more important

decision-making

vari-

ables-at least,

that thought occurred to

Justice

Stone (see Mason,

1956,

pp. 306,

350-51).

Although there is considerable disagreement in the Court concerning the

basic

judicial role, expectations concerning certain specific aspects

of

a

justice's

behavior are shared by

all--he

should

act

with dignity in open

court,

speak in conference

in

order of seniority, vote in reverse order,

etc.

Most makes much difference whether unfortunate interpretations

of

the Constitution are purpose-

ful

or

only

the product

of muddy

thinking and the subconscious force

of

unrecognized preju- dices" (quoted in Mason, 1956,

p. 41.2).

7

When challenged on this point by a former colleague

i_

at Columbia who

argued.

that

the.

motives or values of conservatives were the underlying

bases

for their decisions, Stone re- sponded: "In the long run,

I

do

not

suppose

it



78

DAVID

1. DANELSKI

of

the expectations defining

the

chief

jus-

tice's

role are

similarly shared, and they

put

him in a unique position

for

purposes

of

conflict avoidance and resolution. As presiding officer in open court and in conference, he can sometimes stem a conflict in its

early

stages and orient the discussion to resolve

it. He

can use

his

power to assign opinions as an instrument

of

conflict resolution by assigning divided decisions to justices whose opinions

will

tend to unite the Court (see

Danelski,

1961, pp. 503-05). He can

also

use his assignment power as an instrument

of

dispute settlement in

so-

ciety by assigning cases to justices whose

authorship

will have positive symbolic significance

for

defeated litigants and the interests they represent. Chief Justice Hughes did this when he assigned decisions striking down

New

Deal statutes to liberal justices

like

Brandeis. To give added symbolic significance to decisions involving disputes

of

great moment in society, chief justices have often assigned cases to themselves. Chief Justice Warren speaking

for

the entire Court in Brown

v.

Board

o[

Education

(1954) is

the best modern example. As a consequence

of

this practice, chief justices have often been singled

out for

attack by losing litigants

and

those who identify with them. The

chief

justice is

also

in a position to reconcile disagreement in the Court because

of

his central position in

intracourt

communications,

for he

usually

knows

better than any

of

his colleagues who is having difficulty writing an opinion,

who

is waver- ing in his vote, and so forth. And since, as a practical matter, he decides when an opinion will be announced, he can delay an-

nouncement in

hope

of

augmenting

the Court's majority

in a given case. Chief justices have generally made the most

of

their position

to

reconcile disagreement in

the Courtmso much

so that in certain periods

of

history an important sector

of

the chief

justice's

role clearly concerned conflict resolution. One

would

therefore expect a

chief justice

who actively embraced that sector

of

his

role

to be more inclined to suppress his own disagreements with

col-

leagues,

to

keep them covert or at

least

nonpublic. That appears to have been true

of Chief

Justices White, Taft, and Hughes.

White's case

is the clearest because, in addi-

tion to

sharing

Taft's

and

Hughes's

conceptions

of

the

chief justice

as Court unifier, he had occupied the role

of

associate

justice for

some eighteen years immediately before

his

promotion to the chief

justiceship.

There-

fore,

his overt public behavior

in

each

role

can be compared. As associate

justice,

he averaged about ten dissents each term; as chief justice, his term average was four dissents. This finding in itself does not show conclusively the impact

of

White's role as chief justice on his dissenting behavior, but persuasive evidence in

.that

regard is

the

fact that,

for

his first

two

terms as chief

justice,

he officially cast only a single dissenting vote.

Chief Justice

Stone, who

like

White occupied both

roles

in succession, did not share

his

predecessors' views

of the

chief

justice

as Court unifier; indeed, when he was

an

associate justice he

objected

to

limit-

ing

the

expression

of

dissent.

In

his case,

the role of

chief justice served at most as a

small

constraint on

his

dissenting behavior; his dissent average as chief justice

far

sur- passed

his

average as associate

justice.s

Some

of the most

important expectations defining a justice's

role

concern public expression

of

disagreement.

Prior

to 1940 it

was

considered inappropriate

for

a justice

to

record dissent officially unless the case

involved

important matters

of

principle

*

For a discussion

of

this matter in regard to Chief Justices Hughes

and

Warren, see Murphy ( 1962, p. 251). CONFLICT RESOLUTION

VOLUM'E

XI NUMBER

1



CONFLICT RESOLUTION

IN

THE SUPREME COURT 79 (usually concerning the Constitution).

If

a case concerned, say, statutory construction, a dissenting justice was generally expected

to

acquiesce in silence. When a justice recorded dissent in lesser

cases, it

was not uncommon

for

his colleagues to remind

him

in a gentle way what was expected. In

his

early years on the Court, Stone received such reminders from Buffer,

McReynolds, Taft,

and Brandeis. During the same pe- riod,

the

general expectation was that special concurrences would

be

infrequent and

would

only happen, again, in cases

involving

matters

of

important principle. After

1940,

expectations concerning public expression

of

disagreement were modified to permit dissents and special concurrences almost without limitation.

The

reason

for the

change appears to be related to Chief Justice Stone's failure to embrace

the

con-

flict-resolving

expectations

of the

chief

jus-

tice's role

and

the general failure

of

social leadership during his

chief justiceship (Danelski,

1961). The

new

expectations concerning public expression

of

conflict have continued despite personnel changes in

the

Court. Leadership "Each dissenting opinion,"

Justice

Jack- son said, "is a confession

of

failure to con- vince the writer's colleagues, and

the

true test

of

a judge is his influence in leading, not opposing,

his

court" (1955,

p. 19).

Leadership is indeed important in the Su- preme Court. In a broad sense,

it

refers to behavior that is instrumental

in

the Court's achievement

of

its goals. Two of

the

Court's main goals are

the

decision

of

cases

and the

maintenance

of

favorable

social-

emotional conditions

for decision-making.

Behavior significantly connected with decisional outcomes

is

therefore a

form of

leadership behavior, and since

it

deals with the

Court's

main task,

it

is called task leadership. Behavior significantly connected with the maintenance

of the social-emotional

conditions for decision-making is another form

of

leadership behavior and

is re?en'ed

to here as social leadership. Both

forms of

leadership are important in understanding decision-making and conflict resolution in the Court.

Task

leadership attempts are defined

in

terms of Bales' categories

4,

5,

and

6 (1950, p. 9)' gives suggestion or direction; gives opinion, evaluation, analysis, or expresses feeling or wish; gives orientation, information, repetition, or confirmation. The analyst designates such attempts as task leadership behaviors ff

it

is highly probable that they have influenced decisional outcomes (see Murphy,

1964,

pp. 7-8;

Danelski,

1964,

pp. 153-55).

The exercise

of

influence

can be

verified to some extent by examination

of intracourt

communications, votes cast and changed, and written opinions circulated and changed at various stages

of the

decisional process. Thus task leadership refers to effective leadership concerning decisional outcomes. A

justice

need not be on

the

winning side

of

a case to exercise task leadership.

He may

lead a minority;

he

may acquiesce in silence

in

a result with which

he

disagrees but yet be influential in determining content

of

the majority opinion. At

one time

or another every

justice

exercises task leadership, but some do so more than others and with such consistency that

it

is not inaccurate

to

refer to them as task leaders

of

a bloc within

the

Court or of the entire Court. A detailed explanation

of

why some justices are more successful in exercising task leadership than others is beyond

the

scope of this article. Suffice it to say that task leadership

is

related to personality, esteem within

the

Court, intelligence, tech- nical competence, and persuasive ability.



80

DAVID 1. DANELSI(1

A task leader is necessarily involved in

conflict and its

resolution. Interested primarily

in

decisional outcomes,

his

concern

for the personal

needs

and

feelings

of his

associates is

apt to be

secondary.

His major

concern

is

carrying a

majorit), with him and

securing an opinion

of

the Court that represents his position.

His

task, as he

often

sees it, is

to win

a

majority by force of

argument. Justices sometimes go along with

him

on

the

surface because they have no desire

to

do battle with

him. As

one justice said

of

another who exercised a considerable amount

of

task leadership:

"You

can't just disagree with

him. You

must

go to

war with

him if

you disagree" (quoted

in Gel'-

hart, 1958, p.

274).

Task leadership,

aim- ing at

decisional outcomes, tends

to

resolve overt nonpublic conflict at

the

level

of

votes and official opinions

but

usually does

not touch it at

the psychological level. On

the

contrary,

at

that level

it

tends

to

exacerbate conflict.

It

is suggested as a hypothesis that

the

importance

of

a

justice'svalues

in

hhe deci-

sional process

is

roughly proportional

to his

exercise

of

task leadership. Values

and

task leadership are also related

in

other ways. Preliminary research by

the~

author sug- gests that the

top

values

of

task leaders

tend

to possess high congruency, intensity,

and

cognitive completeness. They are keenly aware

of

their value positions; they quickly relate facts

and

issues

in

cases to these values;

and

they almost immediately take firm stands in argument,

while

their

col-

leagues are still groping

for sohtions. An-

other hypothesis concerning values

and

task leadership is that task leaders are successful

in

persuasion largely because they understand

the top

values

of

their

colleagues. Intuitively;

they es

'tanate/he

value hierarchies

of

their associates and assess

the

intensity, congruency,

and

cognitive

tom-

pleteness of

values. When disagreement stems

h-orn

value disparity, an astute task leader sometimes attains agreement by strenuously pushing an argument contrary to a

low-intensity

value

held

by a colleague.

He

may make

the

most

of the

low

congruency of

a

value

underlying

his

oppo- nent's position by arguing,

ff it

is relevant, the main inconsistent

value

making

for in-

congruency. Or he may secure agreement by making a

value

more

cognitively com-

plete

for

a colleague.

How

a task leader sees his

basic judicial

role is significant

for decision-making in

the

Court. If

he sees

it

primarily in terms

of self-restraint

or stare decisis,

his

personal values

are apt to

be less clearly reflected

in the Court's

decisions than are

the

values

of

some justices

who

exercise

less

leadership. The converse

is, of

course,

true if

he sees his

role

primarily

in

terms

of

activism or doing justice. No matter

how

he conceives his

role, it

is important

for

leadership

pur-

poses that he understand his colleagues' role conceptions.

If, for

example, a

justice

who disagrees with him sees

his

role as adhering to

stare decisaa, the

task

leader's

course is clear: he must make a persuasive argument

in

terms

of

precedent.

If the disagreeing

justice sees his

role

as doing

justice,

the task

leader's

course is as indicated

in

the previ-

ous

paragraph. Because

of his

role, the

chief justice

has

some

advantages

over his

colleagues in exercising

task

leadership. His

chief advan-

tage is

in the

conference, where he

pre-

sides, speaks first (presenting each case to

his

colleagues),

and

votes

last. His

power to assign

cases for

opinion

also has

considerable task leadership implications because

the

content

of an

opinion turns largely on who is chosen to write

it. How

much

of

an

edge

the

chief justice's

role gives

him is

a question not easily answered.

Reflec-

CONFLICT RESOLUTION

VOLUME XI

NUMBER 1




THE

SUPREME COURT 81 ting on his experience on the New York Court

of

Appeals, Cardozo said that when he became

chief judge,

he was amazed that "his voice in consultation had suddenly ac- quired treble weight"

(Llewellyn

and

Hoebel,

1941, p. 62). That statement would be

more

than a slight exaggeration if

ap-

plied to the

chief

justice's voice in Supreme Court conferences. Hughes

:put

it more accurately when he said that the actual

in-

fluence

of

the

chief

justice depends "on the strength

Of

his character and the demon- stration

of

his ability in the intimate rela- tions

of the

judges" (1928,

p.

57). Social leadership attempts are defined here in terms

of

Bales' categories 1, 2, and 3 (1950,

p.

9): shows solidarity, raises others' status, gives

help

or reward; shows tension release,

jokes,

laughs, shows satisfaction; agrees, shows passive acceptance, under- stands, concurs. The analyst designates these as social leadership behaviors

if

it

is

highly probable that they contribute

to

tension management

arid

group integration. As in task leadership, every

justice,

at one time or another, exercises some social leadership, but some justices are specialists in it. A Court may clearly have one such leader or it may

have two

or three. Almost invariably, social leaders are the

best-liked

members

of

the Court; in sociograms of

the Court

they are in the

middle: of

star configurations. Social leaders

try

to

avoid

conflict-- indeed, they tend to suppress their disagreement with other justices, i.e., keep

it covert---

yet

rather than withdraw from conflict, they remain

in

it primarily to restore peace, solidarity, harmony,

and

friendliness

in

the Court. Sensitive to the needs

of

others,

and

desirous

of

finding ground upon which

all

stand, they negotiate, bargain, seek

and

make concessions. Their behavior is

not

only

instrumental in resolving overt con-

flict;

often it cuts more deeply and resolves covert conflict as well. Knowledge

of

colleagues' values and

role

conceptions is important to the social leader in quest

of

solidarity.

For

example, when two justices are arguing a point involving diametrically opposed top values and the social leader knows that neither

will

be

moved

by the other, the best thing

for

him to do

is

to intervene, suggesting that the case be viewed in different terms or that the justices should perhaps agree to disagree. In trying to reconcile opposing positions, he

may

use his knowledge of his colleagues' values

and

role conceptions

much

as the task leader

would--e.g.,

press a point in-

volving

a value

not

intensely held by a

col-

league, or concede that the proper basis of decision is precedent

but

then point out that, since the cases are

not

clearly in point,

it might

be better to go along with the majority.

But

unlike

the

task leader, his goal is

primarfiy

group harmony,

not vic-

tory.

Important as

values and

role

conceptions are

in

the resolution of conflict by a social leader, his appeals for harmony

often

go beyond them.

He

may appeal to the corporate reputation

of

the Court

and

point

out

that public conflict in

the

Court would diminish its effectiveness in settling

dis-

putes; or he may appeal to friendship,

point out

that others have

acted

similarly in other eases,

and

so forth.

The

chief justice's

role

gives

him

some advantages in exercising social leadership, and chief justices have exercised a considerable amount

of

such leadership in conference,

in

opinion assignments, and in "mass-

ing"

the Court. Insofar as we know,

few'

justices have been simultaneously task and social leaders

of

their Courts. Such persons are said to be



82 DAVID

J. DANELSKI

relatively rare

in decision-making

groups generally (Slater,

1955,

p.

512),

and they

have

been referred to as "great men"

leaders (Borgatta et al., 1954).

Although

Chief

Justices Marshall

and

Hughes appear to have been "great

men"

leaders, the more usual leadership configuration in

the

Court consists

of

different

justices

providing task and social leadership. Sometimes a task leader

and

a social leader will work

in

coalition. That

was .the

situation in

the

1920s when the affable Chief

Justice

Taft exercised social

leadership

and his friend and appointee Van

Devanter

exercised most

of

the task leadership (see

Danelski,

1961). Both task and social leadership are necessary

for

effective

decision-making

in

the

Supreme Court. The former inevitably in- volves conflict that often

leads

to increased tension

and

antagonism, which,

if

unre- lieved, eventually receive public expression. The latter tends to relieve tension, reduce antagonism,

and

integrate

the

group. In other words,

it

tends

to

keep

the

Court in a state

of

emotional

equfiibrium

so that it can take advantage

of

the positive aspects

of

overt nonpublic conflict

and

at the same time resolve

it,

or

at least

manage

it,

so that when

the

Court speaks publicly it

can

achieve maximum societal dispute

settle-

ment. Personality Personality, like other concepts discussed, is a hypothetical construct anchored in

quantifiable

human behavior.

It

is inferred from sets

of

activities that differentiate one

justice

from another in terms

of

some theory. The theory is deliberately unspecified

be-

cause different personality theories

can

profitably

be

postulated

in the

discussion

of

conflict

and its

resolution in the Supreme Court.

Karen Horney's

theory

(1937, 1945,

1950) will be used here to

illustrate

the utility of

the

concept of personality

in .the

present discussion and to extend the general analysis.

Her

theory and

the typology of

personality stemming from

it

are not com-

plex,

but

at the

present stage of develop- ment

of

judicial

decision-making

theory, that is an advantage. Moreover,

the

theory

can

be applied to available data concerning

the

justices

and

is capable

of

being

operationalized for

precise quantitative analysis. According

to

Homey, a person's attempts

to solve his

inner conflicts determine

his

personality type. There are three basic solutions: moving toward people, moving against them, and moving away

from

them.

For

the sake

of

simplicity, she classified the corresponding personality types as

com-

pliant, aggressive,

and

detached. At one time or another, everyone exhibits behavior indicating movement toward, against,

and

away from people. The task of the analyst is

to

determine which solution is dominant. The extent of

compulsiveness of

a person's behavior

in

regard to one

of the

solutions indicates

the

degree

to

which

he

is associ- ated with that personality type. Thus a given type may be further designated as mild, moderate, or extreme. The behavior

of

a compliant type indicates that his primary needs are affection

and

approval. He sees himself as unselfish, humble,

self-sacrificing,

kind, loving, gen- erous, trusting;

and he

is usually perceived by others that way because he manifests such behavior.

His

behavior pattern

in

that regard, however, tends to be extreme

and

rigid. He overrates

his

congeniality and what he has in common with others;

he is

often

overconsiderate

and

overgenerous. He

avoids

intrapersonal

conflict, is conciliatory,

and

hesitates

to

assert himself or give orders. He is essentially submissive

and

compliant.

He

needs a special

partner--often

a friend CONFLICT RESOLUTION VOLUME

XI NU.MBER 1



CONFLICT RESOLUTION 1N

THE

SUPREME

COURT 83

or

spouse--someone

with an opposite

personality who

aggressively protects

him

and his interests

and who

gives him approval and affection. Other characteristics manifested by this personality type are

self-

subordination, helplessness, and a tendency to

rate

himself

in

terms

of

what others think

of him. He

readily assumes that others are superior to him

and often feels

that they

could do

his

job

better.

He is

very sensitive to criticism

and fears

rejection.

The

compliant justice, disliking conflict

and

avoiding it

where

he can, is amenable to its resolution in the Court.

He

is hesi- tant to press

his

positions aggressively, especially

in

conflict situations, and is inclined

to

defer to justices who assert task

leader-

ship.

For

that reason,

his

disagreements with his colleagues tend to remain covert. Conflict,

particularly if

it

is

antagonistic, makes

him

tense, tenser

usually

than

the

rest

of

his colleagues, and

in

an effort to relieve that tension,

he

manifests social- emotional

behavior:

he

laughs,

jokes, and seeks reconciliation

of

opposing views. His contribution to the decisional process

often

wins his colleagues' affection

and

approval, which,

of

course,

he

wants. Thus his personality predisposes

him

to assert social leadership

and

at the same time makes it difficult

for him

to assert task

leadership.

One

of

the most effective social leaders in the

Couffs

history was

Chief

Justice

Taft,

a moderate compliant type.

His

special partner was his close friend, Justice Van Devanter, who was the task

leader

during

his chief justiceship.

"While the compliant type tends to

ap-

pease," wrote

Homey, "the

aggressive type does everything he can to

be

a good fighter. He is

alert and

keen

in

argument and will go out

of his way

to launch one for the sake

of

proving

he

is right.

He

may be at his best when

his

back is to

the wall

....

He

is a bad loser and undeniably wants victory" (1945, p. 66). He sees himself as tough and would

like

others

to

see

him

that way.

He

seeks

power--control

over

others--

and will go to great lengths to attain it. Often he operates openly,

but

"he may

pre- fer

to be the power behind the throne" (Homey,

1945, p. 64).

Persons with extreme aggressive personalities are seldom appointed

to

the Supreme Court, probably because extreme aggressive- ness

is

regarded as

unjudicial and

also probably because extreme aggressive types are unable to establish the requisite

affeetive

relationships

for

political preferment (see

Lasswell,

1954,

p.

222;

Danelski,

1964, pp. 159-61).

But

it

is

not uncommon

for men

with mild to moderate aggressive personalities to be

appointed.~

They are

the

ones

who

easily express overt conflict, and they are

also

the ones who usually make task leadership attempts

in the

decisional process. Justice Black,

for

example,

who has

exercised considerable task leadership, was described by one

of

his former

law

clerks as follows:

"[He]

is a very,

very

tough man. When

he

is convinced,

he

is cool hard

steel. He

knows clearly the kind

of

America he wants

his chfidren

to grow

up

in,

and he

is absolutely impervious to blows that may fall upon him

for

trying to create that Amer- ica.

His

temper is usually in

close

control, but he fights, and his words may occasion- ally have a terrible edge. He can be a rough man

in

an argument" (Frank, 1949, pp. 134-35). The behavior

of the

detached type indi-

cates

a capacity

to look

at himself "with a kind

of objective

interest, as one would look at a work

of

art"

(Horney, 1945, p.

75).

His

primary need

is

emotional

dis- rance

between himself

and

others. De- tached persons are determined "not to get emotionally involved with others

in

any



84

DAVID

1. DANELSK1

way, whether in love,

fight,

cooperation, or competition. They draw around themselves a kind

of magic

circle

which

no one can penetrate.

And

that is

why,

superficially,

they may

'get along' with people." Other basic needs

of

this type are

self-sufficiency,

privacy, and a

teeling of

superiority.

Lass-

well

views the

detached type as a basic

poIitical

personality type. Highly intelligent persons

of

this type,

he

points

out,

can easily fake

affectionate

warmth; they "can recognize signs

of affective

expectation

in

others

and play up, much

as

the deaf man learns

to

read

lips

and

to mingle smoothly with those who are not hard

of

hearing .... From detached characters,"

Lasswell

con- cludes, "useful

judges,

arbitrators, concilia- tors, diplomatic

negotiators and

scientists can be recruited"

(1948, pp.

92-93). Assuming a

justice's

detachment is mild to moderate, he can be

very

effective in

decision-making and

conflict resolution.

In

making

task-leadership

attempts he

does

not have

the

emotional involvement

of the

aggressive type,

which

is to his

advantage--

he

can

more easily plan his strategy

of

argument

and

take into account his colleagues' values

and

role conceptions. He

is

therefore

in

a good position to emerge as a task leader; his personality does not stand in his way as it does

for

the compliant type.

Nor

does

it

stand

in

the way

of his

exercising social leadership,

for,

as

Lasswell

pointed

out, if

he is highly intelligent, he can simu- late

the

requisite warmth

and

perform deliberately

the

necessary

social-emotional be-

havior. Besides, as Homey observed, he usually gets along with his

colleagues--

perhaps superficially, but

he

gets along nonetheless. Therefore a

justice (and

especially a

chief justice)

with a mild to

mod-

erate detached personality, which Hughes appears to have had, is in a favorable

posi-

tion to exercise both task and social leadership.

Chief Justice Marshall

exercised both task

and

social leadership, but he was not a detached type. Nor was

he

a compliant or an aggressive type.

He

possessed the warmth

of

personality

often

exhibited by compliant types, but he

could

be aggressive,

and at

times in

fact

was,

in

leading

his

Court. And

he

was also capable

of

detachment.

The

most tenable hypothesis con- ceming Marshall

is

that he possessed a superbly adjusted personality, which,

com-

bined with high intelligence and other qual- ities, magnificently suited

him for

"great man" leadership. Admittedly, this

brief

discussion

of

Hor- ney's theory

of

personality in relation to conflict and its resolution in

the

Supreme Court does no more than scratch

the

surface

of

the subject. Yet

it

does show

the sig-

nificance

of

personality as a variable

in

the Court's decisional process,

and

indicates that more sophisticated

and

rigorous inquiries using this variable

are

likely to be fruitful. Conclusion Conflict in the Supreme Court is inevita-

ble

as

the

justices attempt to fulfill their primary political

role--the

settlement

of

disputes brought before them.

It

is due largely to

the

kinds

of

cases that come

to

the Court, those

for

which

legal

guidelines are unclear and those which involve basic societal conflicts.

Such

cases make the

jus-

tices' values salient

in decision-making,

and therefore value disparity is a

major

source

of intracourt

conflict. Another

major

source is disparity

of

conceptions

of

the basic

judicial

role. Other sources

of

conflict in- clude the

justices'

personalities. Some conflict is functional to the

Court's dispute-settling role,

but some is not. There- fore

it

is important

for

members

of

the Court CONFLICT RESOLUTION VOLUME XI NUMBER

1




THE

SUPREME COURT 85 to distinguish

functional

from

dysfunctional conflict

and

to

strive to resolve, or

at

least manage, the latter. Success

in

this regard depends largely on

the

maintenance

of social-emotional

conditions necessary

for

highly rational, efficient, collegial decision- making.

And

those conditions are

dosely

related to

the

quality

and

quantity

of

task and social

leadership--both of

which,

in

turn, are related to

the

justices' personalities. Values, role, leadership, and personality are

thus key

concepts

in

understanding conflict, its resolution,

and decision-making in the

Supreme Court. They appear especially useful in understanding overt nonpublic and covert

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Haven, Conn.: Yale University Press, 1964. CONFLICT RESOLUTION VOLUME

XI

NUMBER 1



law and conflict resolution || conflict and its resolution in the supreme court

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