About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

74 Judicature 6 (1990-1991)
Revisiting the Freshman Effect Hypothesis: The First Two Terms of Justice Anthony Kennedy

handle is hein.journals/judica74 and id is 8 raw text is: Revisiting the freshman effect hypothesis: the first two terms of Justice Anthony Kennedy Kennedy's behavior during his first two terms on the Court cannot be described as disoriented, uncertain or vacillating-characteristics of the freshman effect. In fact, reports indicate he settled nicely into his new job within a short period. by Albert P. Melone M any believe that newly- appointed justices to the United States Supreme Court exhibit behavioral patterns collectively known as the fresh- man effect. Three factors characterize this phenomenon. First, these justices are bewildered by their new duties and responsibilities. They are awed by the office and need several years to become psychologically adjusted before they per- form their duties with confidence. Sec- ond, in an attempt to ease newly- appointed members into the demands of the small group setting, senior justices do not assign their junior colleagues an equal share of opinion writing chores. Third, freshmen fail to align themselves immediately with the Court's established voting blocs. Instead, they take time to investigate their political and interper- sonal environment.' We need to ascertain whether, and to what extent, freshmen behave in this way so that we can better understand Supreme Court small group dynamics. The ability of the Court to conduct its task effectively and efficiently is pro- foundly affected by the integration of new members, each contributing their fair share to the workload. Moreover, the ability of presidents to affect immediately the decisional outputs of the Supreme Court may be adversely affected by the timeliness and extent to which new ap- pointees join existing voting coalitions. Recent research casts doubt on the ubiquitous nature of the so-called fresh- man effect. Independent studies focus- ing on Sandra Day O'Connor and Antonin Scalia suggest that the fresh- man effect hypothesis may be incorrect or time bound.2 The accession of Anthony Kennedy to the high court pro- vides an opportunity to test the proposi- tion once again. Initial bewilderment Late in their careers some justices ac- knowledged that they were bewildered when they came to the Supreme Court. Justice Frankfurter commented that even those justices who had prior judicial ex- perience ...do not find the demands of their new task familiar.3 Justice Bren- nan observed that ...One enters a new and wholly unfamiliar world when he joins the Supreme Court.... In Justice Murphy's case one scholar reported that, 1a minimum of three terms was required before he was assimilated confidently into the life and work of the court.'5 Early in their Court tenure, neither O'Connor nor Scalia exhibited signs of bewilderment.6 The fact that they both had prior judicial experience and each possessed established formulations of This is a revision of a paper first presented at the Midwest Political Science Association ,18th Annual Meeting, April 5-7, 1990. 1 want to thank panel discussants Richaid A. Brisbin, J., and Robert Dudley lot their peiceptive insights. I profited by the helplful criticisms ollered by ile thee atony- mous reviewer s used by tIe JUDICATURE stall to eletee tile manuscript. Scott Myers, my tesealch assistat at Southeitt Illinois Univetrsity, put in 111ally houls helping to collect and to process the data lot this study. Marc George Pulong also pto- vided assistance. Finally, Illy IelpIul col league, Richard Dale, lead the manuscript 101 clarity and provided uslil suggestions lot fiiial tevision. l. Siydet, The Supreme Court as a Small Group, 36 Soc. FoRcEs 232 (1958); Howaid, Mr. Justice Murphy: The Freshman Years, 18 \AND. L. REv. 17't (1965); Ulncr, Toward a Theory of Sub-Group Formation in the Supreme Court, 27 J. Pot.. 133 (1965). the judicial role probably operated to socialize them to the tasks ahead. The impact of anticipatory socialization upon Kennedy may have been similar, no doubt closer to Scalia's federal court of appeals experience than to O'Con- nor's Arizona trial and appellate court background. Yet, the extraordinary cir- cumstances surrounding his appoint- ment suggest that the manifest freshman sense of bewilderment might be at work. Kennedy joined the Court in February 1988, four months after the beginning of the October 1987 Court Term. As the third choice of President Reagan to fill the position vacated by Justice Powell, Kennedy did not undergo the intense public interrogation of the President's first choice, Robert Bork, or the personal scrutiny of Douglas Ginsburg, the Ad- ministration's second choice. Yet, the White House failure to win senatorial confirmation for Robert Bork probably served to intensify Mr. Kennedy's pre- nomination interrogation at the hands of President Reagan's advisors. Kennedy 2. Sloi ik, Judicial Career Patterns and Major- ity Opinion Assignments on the Supreme Court, 'I J. Pot.. 6,10 (1979); Fleck, The Socialization of a Freshman Justice: The Early Years of Justice Bren- nan, 10 PACIlic L. J. 707 (1979); Heck and Hall, Bloc Votingand the Freshman Justice Revisited, 43 J. Pot.. 852 (1981); Brennet, Another Look at Freshman Indecisiveness on the United States Su- preote Court, 16 PoU'ry 320 (1983); Scheb and Ail- shic, Justice Sandra Day O'Connor and the Fresh- man Effect, 69 JUDIcATURE 9 (1985); Rubin and Mclone, Justice Antonin Scalia: a first year fresh- man effect? 72 JUDICATURE 98 (1988). 3. lFrankfure, The Supreme Court in the Mir- ror of the Justices, 105 U. PA. L. REv. 789 (1957). 'I. Brennan, National Court of Appeals: An- other Dissent, '10 U. CI. L. REv. '184 (1983). 5. Howard, supra n. I, at 477. 6. Schell and Ailshie, supta n. 2, at 10; Rubin and Melone, supra n. 2, at 99. 6 Judicature Volume 74, Number 1 June-July, 1990

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most