Legal Duty and Judicial Style: The Meaning of Precedent

Abstract

Senator Roman Hruska defended Nixon's nomination of G. Harold Carswell by saying that mediocrity was entitled to representation on the Supreme Court. It was a remarkable statement, and the memory that Hruska made it indicates we shared his view that something was awry with the Warren Court's readings of the law. What we cannot recall (if indeed we ever knew it) is the argument Hruska made in support of his position: "We can't have all Brandeises and Cardozos and Frankfurters and stuff like that. I doubt we can. I doubt we want to." "Stuff like that" is not something of which Hruska approves, and it must therefore be distinguishable from mediocrity, which Hruska argues should be represented on the Court. The basis on which mediocrity deserves representation is presumably that the law should reflect the society it is designed to govern. The implied contrast with "stuff like that," therefore, is distance from the law, a separation between Justices and the society for which they make law, a separation that permits the law to reflect the Court's view of what ought to be.