The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

I. Deliberating with Colleagues

Walter F. Murphy, McCormick Professor of Jurisprudence at Princeton University, teaches public law and comparative politics. He studied at the University of Notre Dame ( A.B., 1950), George Washington University ( A.M., 1954), and the University of Chicago ( Ph.D., 1957). His published works include Congress and the Court ( 1962), The Study of Public Law, with Joseph Tanenhaus ( 1972), and Basic Cases in Constitutional Law, edited with Duane Lockard ( 1980). The following excerpts from Elements of Judicial Strategy ( 1964), concerning bargaining as well as compromise and accommodation, reveal Murphy's skill as an observer of small-group dynamics as they play themselves out on the Supreme Court.


BARGAINING

Bargaining is most likely to occur when men agree on some matters, disagree on others, and still feel that further agreement would be profitable. Where the disputants are of approximately equal authority, they must, if persuasion has failed and force is not a feasible alternative, either turn to bargaining or reconcile themselves to loss of the advantages which they would accrue from compromising over the remaining points of difference. Disputants in posts of political authority who fail to achieve some sort of modus vivendi will frequently find that the problem at hand will be solved by other actors--with perhaps no profit and some loss to the original disputants or to their policy goals.

For Justices, bargaining is a simple fact of life. Despite conflicting views on literary style, relevant precedents, procedural rules, and substantive policy, cases have to be settled and opinions written; and no opinion may carry the institutional label of the Court unless five Justices agree to sign it. In the process of judicial decision-making, much bargaining may be tacit, but the pattern is still one of negotiation and accommodation to secure consensus. Thus how to bargain wisely--not necessarily sharply--is a prime consideration for a Justice who is anxious to see his policy adopted by the Court. A Justice must learn not only how to put pressure on his colleagues but how to gauge what amounts of pressure

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