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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* SAMUEL ENOCH STUMPFf 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 Foundation. 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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