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6 Vand. L. Rev. 41 (1952-1953)
The Moral Element in Supreme Court Decisions

handle is hein.journals/vanlr6 and id is 55 raw text is: THE MORAL ELEMENT IN SUPREME COURT DECISIONS*
Does the United States Supreme Court decide cases on the basis
of moral and ethical value judgments? Such a question may reveal a
misunderstanding of the nature of law as well as the nature of the
judicial process. Moreover, to expect the Court to roam in the field
of morals may indicate a failure to take into account the limitations
placed upon the Court both by our federal system and by the division
of powers. Indeed, a reading of the Supreme Court decisions for
the past twenty years reveals a manful resistance on the part of the
judges to intrude their moral and ethical judgments into their de-
cisions; and their resistance is grounded on the double barrier of
states' rights and congressional prerogative.
Yet, there is a persistent belief that law finds its deepest validation
in its conformity with moral and ethical values and principles. As the
highest organ of law in our society, the Supreme Court cannot avoid
confronting from time to time this moral dimension of law. Wherever
the destinies of men are involved a decent respect for their reason
and conscience demands rationally articulated decisions in contro-
versies. That the Supreme Court occupies such a strategic role in
our society is beyond question. Over a century ago Chief Justice
Marshall said that The Judicial Department comes home in its effects
to every man's fireside; it passes on his property, his reputation, his
life, his all.' Aware of this unique status, the Court has frequently
broken the restrictive bounds of technicality, feeling, as Justice Frank-
furter once wrote, that there comes a time when even the process
of empiric adjudication calls for a more rational disposition than
that the immediate case is not different from preceding cases.' When-
ever this happens, the moral and ethical convictions of the judges, or
of society as understood by the judges, begin to move into the reason-
ing of the Court.
What do we mean by the moral element in judicial opinions? The
moral element of a decision is that portion of the argument or line
of reasoning which rests primarily upon such moral and ethical con-
ceptions as right and wrong, good or bad, desirable or
undesirable, or preferable or not preferable. The moral element
in an opinion has the effect of contrasting an action, a given conduct
*Research for this article was made possible by a grant from the Rockefeller
tProfessor of Philosophy and Head of the Department of Philosophy, Van-
derbilt University.
1. Chief Justice John Marshall, in the course of the debates of the Virginia
State Convention of 1829-30, cited by Justice Sutherland in O'Donoghue v.
United States, 289 U.S. 516, 532, 53 Sup. Ct. 740, 77 L. Ed. 1356 (1933).
2. New York v. United States, 326 U.S. 572, 575, 66 Sup. Ct. 310, 90 L. Ed.
326 (1944).

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