Economic Predilection and the Law

Samuel Herman

American Political Science Review, 1937, vol. 31, issue 5, 821-841

Abstract: As 1937 brings into sharp focus the New Deal critique of the judiciary, the phrase “economic predilection” becomes a slogan rather than a subtle juristic evaluation. The famed dictum of Justice Holmes that there is an inarticulate major premise upon which major constitutional issues are decided was necessarily made an issue in government by an Administration whose program is primarily economic. An Administration dedicated to war as governmental policy might similarly inveigh against “pacifistic propensity” in the judiciary. In the midst of the heat and controversy as to whether the integrity of the judiciary is impaired by a charge that judges adjudicate constitutional issues upon the basis of “economic predilection,” it seems desirable to inquire into the possibility of formulating a disciplined judicial economics, to the end that there may be a realistic, tempered instrument for solving the major judicial questions of our time. The more sensitive jurists have expatiated upon the intuitive and subconscious aspects of judicial decision, but beyond stating that such factors exist they have, on the whole, continued to articulate their judicial reasonings in conventional legalistic form. Legal tradition is usually successful in throwing the balance in favor of the seeming where the seeming and the actual are in conflict. What exceptions there have been have been of inestimable benefit to the law. They have brought wisdom, beauty, and strength to an ancient, oft-times sadly thread-bare, technique. An example is the approach to law exemplified by the method of Mr. Brandeis both as advocate and justice.

Date: 1937
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