Pennsylvania Supreme Court Justices: a Collective Biography, 1933-1963

PENNSYLVANIA SUPREME COURT JUSTICES: A COLLECTIVE BIOGRAPHY, 1933-1963

By DARYI, R. FAIR*

COURTS are, in part, political institutions. Politics, broadly conceived, has to do with the making of authoritative social policy, and courts of all kinds are incontestably important policy- makers for society. The current storm over the Supreme Court of the United States was precipitated by the Court itself when it began to move into several sensitive policy areas at a rate too fast to suit certain important segments of society. The recent ap- portionment controversies in Pennsylvania, in which the state Supreme Court has been involved, testify that state courts are also involved in the making of policies that have social, political, and economic consequences. The judicial process, then, has policy implications that cannot be ignored. At the heart of the judicial process lies the making of decisions. Difficult choices must be made between competing interpretations of what the law is and how it should be applied to the case at hand. Where hard choices must be made, an element of discretion invariably is involved. It has long been recognized that "Judges do and must legislate."'. The man who wears the robes is a human being, a product of his total environment. Knowledge of that environment is essential to an understanding of how courts func- tion, of why judicial decision-makers select one course of action rather than another.

The conviction that the political decision-maker's behavior and decisions are influenced by his personal life experiences not only has a long and honorable history but also is substantiated by modern psychological and socio- logical research..2 *Dr. Fair is assistant professor of Political Science at Rider College, New Jersey. 1justice Oliver Wendell Holmes, Jr., dissenting in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), 221. 2 Donald R. Matthews, The Social Background of Political Decision- Jllakers (New York: Random House, 1954), p. 2. 243 244 PENNSYLVANIA HISTORY

A\ppreciation of the role courts play in the policy-mnaking process, then, is hampered 1v lack of information about judges, the judicial policy-makers. Very little systematic informiation on the socio economic backgrounds of state judges is readilv available. The data are widely scattered and often virtually inaccessible. This study is intended to serve the purpose of bringing together data on the judges of the Supreme Court of Pennsylvania for the period between 1933 and 1963. This era was chosen because of its correspondence with tl-e most recent distinct period of American history-that beginning with the New Deal in 1933. All judges who sat on Pennsylvania's SSupreme Court during this time are subjects of this study in collective judicial biography. Patterns and regularities in the socio- economic backgrounds of these judges are investigated in an at- tempt to clarify factors operative in the Pennsylvania political vsytem in relation to judicial selection. Although no systematic aplproach to the relation of background characteristics to judicial behavior is attempted here, the study is devoted to traits com- monly thought to be related to attitudes and behavior. Thus subsequent evaluations of the influence of euvironmiental factors might possibly be built upon this foundation. This study draws upon data from several types of sources. State (loculnents, in particular the various editions of The Pennsylvania 1iailntal, were helpful. So, too, were standard biographical di- rectories such as f7 hIo's W/ho ai the East and the Directory of J,11icrican Jntdges. Newspaper and periodical articles were con- sulted writings of the judges themselves were checked for autobiographical references. Finally, a questionnaire was sent to all living judges- involved in the study and to relatives of deceased justices, whenever possible. The information obtained by these means, while not complete, is more extensive than that available for thesec jurists in any other single source.

Tui COURTI iennmsylvania's highest court consists of seven judges who are elected at large by plurality vote of the electorate for a term of twenty-one years; they are not eligible for reelection. The senior elected judge, in point of tenure, is automatically Chief Justice. In case of a vacancy on the bench, the Governor appoints someone PENNSYLVANIA SUPREME COURT JUSTICES 215 to fill the seat. Persons so appointed serve until the first Moonday of the January following the first general (November) election that takes place three or more months after the vacancy occurs. Thus the maximum appointive term is approximately seventeen months; needless to say, such terms are rarely that long. Normally, tlhe person appointed to fill a vacancy runs for election to a full term on the Court. Thus, although nominally an elected bench, tile Pennsylvania Supreme Court does depend partly upon appointment by the chief executive. Along with the factor of judicial elections oh a partisan ballot, dependence on executive appoillt- ment makes partisanship very significant in Pennsylvania juttlicial politics.

POLITICAL PARTY Studies of voting behavior have repeatedly demonstrated that a relationship exists between political party identification and political attitude structure.' Furthermore, Stuart Nagel has shown that there is a correlation between the political party identification of judges and their voting behavior in certain classes of cases.4 Thus, in spite of Theodore Roosevelt's disparagement of 1o,,ino11al politics and his assertion that "real politics are all importarit," it seems that nominal and real politics coincide often ellough so that political party affiliation is an important consideration in a study of the socio-economic backgrounds of judges. During the period under consideration in this study, twenty- eiglht persons served on the Supreme Court of Pennsylvania. Of thiese, eighteen -were Republicans and ten were Dlemocrats.6 Re- publican judges held a majority of the seats on the Court from the opening of this period until November 9, 1958, when Curtis

'See, for example, Angus Campbell, et at., The Amierican Votcr (New Ytork: John Wiley and Sons, 1960), pp. 120-145. ""Political Party Affiliation and Judges' Decisions," .Inicrican 'olitical Science Reviezw, LV (1961), 843-850. IQuoted in Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1962), 1). 71. 'The Republicans were John C. Arnold, John C. Bell, Jr., Thomas McIK. hidsey, James B. Drew, Robert S. Frazer. Howard W. Hulghes, Benjamin Ix. Jones, John W. Kenhart, William B. Linn, George W. Maxey, Henry X. .'Brien, Willian M. Parker, Marion Patterson, Samuel J. Roberts, William 1Sclaffer, Alexander Simpson, Jr., Allen M. Stearne, and Horace Stern. hle Democrats were Anle X. Alpern, H. Edgar Barnes, Curtis Bok, Her- t~ert B. Cohen, Michael J. Eagen, Charles Alvin Jones, Earl S. Keim, rover C. Ladner, Thomas D. McBride, and Michael A. Musmnanno. 246, PENNSYLVANIA HISTORY

Bok took his place as the fourth Democrat on the Court. Demo- cratic justices were then in the majority until the period under consideration ended with the ascension to the Court of Samuel J. Roberts (Republican) on January 6, 1963. The political party affiliation of the justices of the Supreme Court of Pennsylvania is a reflection of the general political com- plexion of the Commonlwealth. From the Civil War to the New Deal, Pennsylvania was a Republican state. Even the Democratic successes of the New Deal era seemed for a time to have been temporary. Beginning about 1950, however, the Democrats made fresh advances that began to take on an air of permanence. Ac- cording to Edward F. Cooke and G. Edward Janosik, "Pennsyl- vania is slowly evolving into a marginal or doubtful state, one which may swing to either party depending upon the candidates and the issues."- But scholars do not agree entirely on the degree of competition present in Pennsylvania politics. Austin Ranney and Willmoore Kendall have classified the Keystone State as a modified one-party states while V. 0. Key, Jr., using other criteria for classification, puts it in the category of competitive states. It is clear, however, that Pennsylvania is a more competitive and unpredictable state than it once was, and that as the state has become more competitive, more Democrats have been elected to the Supreme Court. Assuming that Pennsylvania politics continues to be characterized by competitiveness, it is reasonable to believe that one party will no longer control the Supreme Court as was the case before 1950.

LENGTH OF SERVICE As previously indicated, Pennsylvania Supreme Court judges are elected for terms of twenty-one years. Since, as will be shown shortly, judges typically reach the Court between the ages of fifty and sixty, they are frequently unable to complete their terms. In fact, of the twenty-one jurists who left the Court during the period under consideration only three completed full twenty-

TGuide to Pennsylvania Politics (New York: Henry Holt and Company, 1957), p. 15. "'The American Party Systems," Aitmerican Political Science Review, XLVIII (1954), 483. 'American Staoe Politics: An Introdluction (New York: Alfred A. Knopf, 1956), p. 99. PENNSYLVANIA SUPREME COURT JUSTICES 247 one year terms. 0 In addition, five judges completed appointive terms of short duration but were not elected to full terms on the Court.`" Nine justices died in officel2-more than left the Court for any other reason-and four resigned before the expiration of their terms.11 The mean length of service for all judges was approximately 11.5 years. Eleven justices served terms shorter than the mean; ten served longer than average terms. Thus the chances that a judge will complete a full elective term are slim-just over one chance in ten. Table 1 shows the number of justices who completed terms of varying lengths.

TABLE 1 JUSTICES OF TI E PENNSYLVANIA SUPREME COURT, 1933-1963: LENGTH OF SERVICE l ength of Scrvice, Number of in Years Justices Less than 5 7 5 to 10 3 10 to 15 2 15 to 20 4 More than 20 3 Total 21

AGE A Supreme Court judgeship is the highest judicial office to vlhich a lawyer can aspire on the state level, and it is generally regarded as the capstone of a judicial career. Evidence in support of this statement can he found in the facts that during the period tinder consideration all five individuals named to serve short appointive terms on the Court sought full elective terms, and no

"°They were Frazer, Kephart, and Schaffer. Although Drew and Stern each served more than twenty years on the Court, both retired before comn- foleting their full elective terms. "1They were Alpern, Hughes, Keim, Ladner, and McBride. 'Arnold, Barnes, Bok, Chidsey, Maxey, Parker, Patterson, Simpson, and Stcarne died in office. "1Drew, Charles Alvin Jones, Linn. and Stern resigned before their terms "explred. 248 PENNSYLVANIA HISTORY justice resigned from the Court to seek advancement in any other public or private position.' 4 This being the case, the supreme bench is not reached early in life. Of the twenty-eight persons who came to the Court during this period, sixteen were between the ages of fifty and sixty; the mean age of the twenty-eight was 57.4. This is somewhat older than judges of the United States Supreme Court appointed during a similar period (1937-1958), who averaged 52.9 years."5 Following is a table showing the number of justices who were in various age groups upon coming to the Court.

TABLE 2 JUSTICES 01; THlE PENNSYLVANIA SUPREME COURT. 1933-1963: AGE ON COMING TO COURT

.4ge Numnber of Justices

45-50 2 50-53 9 55-60 7 60-65 5 65-70 4 70-75 - Total 28

The Democrats who came to the Court during this period were slightly younger than the Republicans. The former's mean age was 56.0, and that of the latter, 58.2. Both the youngest and oldest person to come to the Court during the period were Republicais (Kephart at age forty-six and Parker at seventy). The mean age of the justices who initially reached the Court through appointment was 57.8; those who reached the Court Ib

"14Justice MIusmanno is the one partial exception to this rule. He sought the office of United States Senator in 1964, but he refused to leave the Court while seeking the nomination. After losing the primary to Genevieve Blatt in a bitter fight, he returned to his seat on the Court. He did not sit and did not accept his pay for the period he was seeking the nomination but he did not resign either. Thus a Supreme Court judgeship is, after all, highly prized and not to be cast aside lightly. " Glendon A. Schubert, Constitutional Politics: The Political Behavior of Suprecne Court Justices and the Constitutional Policies that They Mat (New York: Holt, Rinehart and Winston, 1960), p. 58. 1PENNSYLVANIA SUPREME COURT JUSTICES 249 e lection averaged 56.9. The youngest judge to come to the Court Luring this period came initially by election, while the oldest new- comer reached the Court originally by appointment. The following table presents the foregoing- information in tabular and more de- .aiiled form.

TABLE 3

JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: MEAN AGE ON COMING TO THE COURT

Initially reached Court by: Demlocrats Republicans Total _kppointinent 56.7 58.6 57.S (6) (9) (15) I lection 55.0 57.8 56.9 (4) (9) (13) T otal 56.0 58.2 57.4 (10) (18) (28)

Note: The figures in parentheses indicate the number of justices who fall into each category.

The mean age at which justices left the Court during the period tunder consideration-sixty-nine-further supports the hypothesis that service on the state Supreme Court is the capstone of a jutdicial career. Furthermore, when the five persons who served appointive terms but were not elected to full terms on the Court are excluded, the mean for the remaining sixteen judges is 72.9. The five justices Who failed to be elected to the Court averaged 56.8 years of age 11po0I leaving the Court.IG For judges who left the Court during this period, the average age of the three Democrats was 63.3 and of the thirteen Republicans, 75.1. Ten justices died in office be- twxeen 1933 and 1963 at a mean age of 71.5 years; the average

ba'e of the six judges who left the Court for other reasons (term expiration or retirement) was 75.2.17 Only three men served on the Court past seventy-five during these years: Fr azer, whose term e\pired when he was eighty-seven years old; Simpson, who died at eighty; and Stern, who retired at seventy-eight. Thus, the Forr purposes of further calculations in this section (on age), these five f'stices will be excluded. 7This pattern follows that of the United States Supreme Court for the iod 1937-1956. See Schubert, Constitutional Politics, p. 61. 250) PENNSYLVANIA HISTORY

"superannuation" of justices of the Pennsylvania Supreme Court is a bit more pronounced than that of judges of the United States Supreme Court. For the period 1937-1956, the mean age of members of the United States Supreme Court who died in office was just under sixty-five as opposed to 71.5 for judges of the Penn- sylvania Supreme Court. The average age of justices who retired or resigned from the United States Supreme Court during the same period was 74.0 as distinguished from 75.2 for judges of the Pennsylvania Supreme Court."

BIRTHPLACE The environmental factors of place of birth and residence during the early formative years are important to a study of judicial behavior because of the influence which these factors may ultimately have on social outlook. The majority of the United States Senators who served between 1947 and 1957 were born in rural areas.. The Senate is an elected legislative body. Justices of the United States Supreme Court have, however, tended to come from city or town backgrounds.' The United States Supreme Court is an appointed judicial body. Which of these two patterns does the Penns lvania Supreme Court, an elected judicial body, tend to follow? Of the twenty-eight individuals who served on the Court during the period under consideration, twelve were born in large cities, seven in small towns, and six in rural areas.21 No data were axailable on three persons. Thus the places of birth of the judges of the Pennsylvania Supreme Court follow the pattern of the United States Supreme Court rather than that of the United States Senate. Compared with the percentage of the total state population living in such areas, there was overrepresentation of towns and underrepresentation of rural areas in so far as birth- places of the justices are concerned.22

Ibid. Donald R. Matthews, U. S. Senators and Their World (New York: Random House, Vintage Caravelle Edition, 1960), p. 14. "John R. Schmidhauser, The Supreme Court (New York: Holt, Rine- hart and Winston, 1960), p. 36. "'For the purposes of this paper, a city has been defined as a place of over 100,000 population, a toewn as a place with between 2,500 and 100,000 inhabitants, and a rural area as a place with fewer than 2,500 residents. "22"Overrepresentation" and "underrepresentation" are used here in a statistical sense and imply no value judgment. See Matthews, U. S. Senators and Their World, p. 13 n. PENNSYLVANIA SUPREME COURT JUSTICES 251

TABLE 4 JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: BIRTHPLACE

Percentage of Type of Numbebr of Populations, Place Justices Statezvide City 12 (42.8%) 45.2% Town 7 (25.0%) 3.2% Rural Area 6 (21.4%o) 51.4% No Data 3 (10.7%) Total 28 (100%) 100%

Notes: (1) The percentages of the statewide population are for the census of 1890, which was the census nearest the median of the rank order of the years of birth of the justices. (2) Percentages do not always add to 100% because of rounding here and throughout. (3) The number of justices involved in this study is actually too small to justify reliance on the percentages of individuals falling into the various categories on this and other attributes studied. They are, therefore, reported in the tables for illustrative purposes only and are not used in the text.

When the places of residence of the justices upon coming to the Court are considered, the town-city tendency becomes even more pronounced. Of the twenty-eight judges, sixteen lived in cities upon coming to the Court, eleven in towns, and only one in a rural area. Compared with the percentages of the total state population living in such areas, there was considerable overrepresentation of cities and underrepresentation of rural areas. All of the justices were born in the United States, and all but twvo in the state of Pennsylvania. Roberts was born in Brooklyn, New York, and Barnes in Washington, D. C.; both came to Pennsylvania relatively early in life. This pattern is in accord wvith that of the United States Supreme Court-in recent times, only two justices of that court (Sutherland and Frankfurter) were not native-born citizens of the United States.23 Furthermore, Schmidhauser points out that judges of the United States Supreme Court have generally come from families that have been long

"'Schmidhauser, The Siuprevie Court. p. 36. 2,52 PENNSYLVANIA HISTORY

TABLE 5 JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: RESIDENCE ON COMING TO COURT

Pcrccntage of Type of Number of Population, Place Justices Statewide City 16 (57.1%) 30.7% Town 11 (39.3%) 35.8% Rural Area 1 ( 3.6%) 33.5% Total 28 (100%) 1009

Note: The percentages of the statewide population are for the census of 1950, which was the census nearest the median of the rank order of the years in which the justices came to the Court. established on this side of the Atlantic. 2 4 While it is true that both parents of many of the justices of the Pennsylvania Supreme Court were native-born citizens, seven judges had at least one foreign-born parent. Thus it would seem that a state supreme court is a goal to which sons and daughters of immigrants can aspire with more chance of success than they could should the) aspire to the Supreme Court of the United States. The fact that the Pennsylvania Supreme Court is an elected body may have something to do with this situation; the desire for politicians to "balance the ticket" is an aid in securing elective offices for minority group members. 2 5

PARENTAL STATUS

That social status and occupation have consequences for political attitude and behavior seems to be an established fact.2 6 It is also clear that political decision-makers in the United States tend to be drawn from the upper and upper-middle classes, being sons of professionals, proprietors and officials, and farmers.2 7 This is true 2'Ibid., p. 37. "25See, for example, Moses Rischin, "Our Own Kind": Voting by Racc, Creed, or National Origin (Santa Barbara, Calif.: Fund for the Republic, 1960). "See V. 0. Key, Jr., Public Opinion and Amierican Democracy (Nexv York: Alfred A. Knopf, 1961), pp. 121-152; and Seymour Martin Lipset. Political Man: The Social Bases of Politics (Garden City, N. Y.: Double- day, Anchor Edition, 1963), pp. 303-331. '2 Matthews, The Social Background of Political Decisions-Makers, p. 23. PENNSYLVANIA SUPREME COURT JUSTICES 253

TABLE 6 JUSTICES OF THE PENNSYLVANIA SUPREME COUR1, 1933-1963: BIRTHIILACE OF PARENTS

B~irthplace Nunber of ot Part nts Justices B'oth Ab:oad 4 (14.3%) One Abroad/On2 U. S. 3 (10.7%) Both U. S. 12 (42.8%) One U. S./One Unknown 2 ( 7.2%) Both Unknown 7 (25.0%)

;'otal 28 (100%) of justices of the United States Supreme Court as well as other decision-makers.2- Table 7 indicates that the Supreme Court of Pennsylvania is not notably different from other American governmental institutions in so far as the occupations of the judges' fathers are concerned. The only deviation from the tendencies noted by Matthews for various other types of political decision- makers is found in the category of proprietors and officials-more of the justices' fathers were in this category than were those of most types of decision-makers listed by Matthews. 2 9 Accompany- ing this deviation is a compensatory deviation in the category of farmers (fewer for Pennsylvania Supreme Court judges than for most types of decision-makers studied by Matthews).30 These deviations are hardly surprising considering the preponderance of justices with small town or urban backgrounds. As Table 4 indicates, less than one-fourth of the justices were born in rural areas. In the United States, occupation is the most reliable single index of social status. On this point, Joseph A. Kahl and James A. Davis state :"

[One] can tentatively conclude that "socio-economic status" is an accurate though clumsy term: there is a

' Schmidhauser, The Supremne Court, pp. 31-33. 'Matthews, The Social Background of Political Decision-M11akers, i). 23. "`Ibid. " "A Comparison of Indexes of Socio-Economic Status," Amiericon 'ociological Rc',iezc' XX (June, 1955), 321. 254 PENNSYLVANIA HISTORY

TABLE 7 JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: OCCUPATION OF FATHER

Occubation I| Numtiber of Justices of Father I Democrats Republicans Total

Professionals 1 ( 3.6%) 5 (17.8%) 6 (21.4%) Proprietors and Officials 5 (17.8%) 7 (25.0%) 12 (42.8%)

- Clerical 0 0 0 Skilled Workers 2 ( 7.1%) 1 ( 3.6%) 3 (10.7% ) Unskilled Workers 1 ( 3.6%) 0 1 ( 3.6%) Farmers 0 2 ( 7.1%) 2 ( 7.1%) Undetermined, Unclassified 1 ( 3.6%) 3 (10.7%) 4 (14.3%) Total 10 (35.7%) 18 (64.3%) 28 (100%)

composite of social and economic attributes that tend to cluster together, and we can measure the composite fairly well. For many purposes it is practical to treat this composite as one dimension-the general factor. The best single index of it is an occupational scale.

In this study, therefore, the composite of social and economic attributes that go to make up socio-economnic status will be treated as a single dimension, and an occupational scale will be used as an index of social status. The occupational scale used is that de- veloped by W. Lloyd Warner and his associates. 2 Because of the small number of cases in the universe of data, Warner's five-class scale (upper, upper-middle, lower-mniddle, upper-lower, and lower-lower) has been collapsed into a three-class scale (upper, middle, and lower). Classification of the judges into the three classes on the basis of the occupations of their fathers shows clearly that a preponderance of these persons were of upper or

"XW. Lloyd Warner, Marcia Meeker, and Kenneth Eells, Social Class in America: A Manual of Procedure for the Measuremenet of Social Status (Gloucester, Mass.: Peter Smith, 1957), pp. 140-141. PENNSYLVANIA SUPREME COURT JUSTICES 2?55 middle class origin. Of the twenty-eight jurists, twenty-three came from upper- or middle-class backgrounds. Furthermore, of the eleven middle-class judges, seven were of the upper-middle class, according to the Warner scale.

TABLE S JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-19o3: Socio-EcoNoMIic STATUS

Numitber of Justices Social Class Demiocrats Republicans 7 otal Upper 3 (10.7%) 9 (32.1%) 12 (42.8%) Middle 5 (17.8%) 6 (21.4%) 11 (39.3%/o) Upper-Middle 3 (10.7%) 4 (14.3%) 7 (25.0%) Lower-Middle 2 (7.1%) 3 ( 7.1 %) 4 (14.3%) Louwer 1 ( 3.6%) 0 1 ( 3.6%) Undetermined 1 ( 3.6%) 3 (10.7%) 4 (14.3%,/,) Total 10 (35.7%) 18 (64.3%) 28 (100%o)

Table 8 shows that Republicans have to a greater extent than Democrats tended to come from the tpper class. Of all Repub- licans who served on the Court, nine were of upper-class origins; only three Democrats belonged to the upper class. Furthermore, five Democrats had middle-class origins while six Republicans were from the middle class. One Democrat was of the lower class; no Republican traced his origins to this position on the social laddler.

RELIGION Since religious affiliation is related to socioeeconomic status. one's religious preference can tell something of his political attitudes.3 Because the upper and middle classes have been in the ascendancy on the Supreme Court of Pennsylvania, it is probable that high-status denominations have predominated on the Court

33 Wesley and Beverly Allinsmith, "Religious Affiliation and Politico- I conoric Attitude: A Study of Eight Major U. S. Religious Groups," Puiblic OPintion Quarterly, XII (1948-1949), 377-389. 26 PENNSYLVANIA HISTORY

as well. Mlatthews has found that this situation exists in Congress.:' Table 9 indicates that high-status denominations have prevailed on the Supreme Court of Pennsylvania.3 5 Fourteen of the justices have come from high-status denominations; another five have been of middle-status sects. Thus, nineteen of the twenty-eight judges have had high- or middle-status religious affiliations. This is neither unusual nor surprising, considering the fact that twenty-three of the justic's were of the upper or middle classes.t

TABLE 9 JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: REI.GIOUs AFFILIATION

Number of Jitst~ces I)cnominoation Percentage of Pa. Pop. Democrats Republicans Total 1936

High Status 4 (14.3%) 10 (35.7%) 14 (50.0%) Episcopalian 1 ( 3.6%) 4 (14.3%) 5 (17.8%) 1.8% Presbyterian 1 ( 3.6%) 4 (14.3%) 5 (17.8%) 4.4% Jewish 2 (7.1%) 2 ( 7.1%) 4 (14.3%) 4.3% Middle Status 2 ( 7.1%) 3 (10.7%) 5 (17.8%) MlethDdist 1 3.6%) 2 ( 7.1%) 3 (10.7%) 5.0% Lutheran 1 ( 3.6%) 1 ( 3.6%) 2 ( 7.1%) 6.1% Low Status Roman Catholic 2 7.1%) 2 ( 7.1%) 4 (14.3%) 23.2% Unclassified, Undetermined 2 ( 7.1%) 3 (10.7%) 5 (17.8%) Total 10 (35.8%) 18 (64.3%) 28 (100%o)

Note: All data concerning size of denominations as a percentage of statewide population is taken from U. S., Department of Commerce, Bureau of the Census, Religionus Bodies: 1936 (2 Vols.; Washington: U. S. Government Printing Office, 1941). :'Matthews, The Social Background of Political Dccision-Mlakcrs, pp. 26-27. 'MThe classification of denominations into status categories employed here is a combnnation of that used in the articles by the Allinsmiths, "Religious Affiliation," p. 385 and Liston Pope, "Religion and the Class Structure,' Annals of the American Acadeinv of Political and Social Science, CCLV[ (1948), 89. The criteria for assigning denominations to statuses are, priu cipally, the economic and educational attainments of the members of the (enominations. :"See Matthews, The Social Background of Political Decision-1llakers p. 27, for the religious affiliation of memrbers of Congress. PENNSYLVANIA SUPREME COURT JUSTICES 257

In view of the fact that Republican judges have to a greater ex- ient than Democratic justices tended to be drawn from the upper socio economic class, it is to be expected that Republican judges have been adherents of the high-status denominations to a greater xtent than Democrats. This is the case. Of the Democrats, four xvere of high-status sects, while ten of the Republicans were. On the other hand, two of the Democrats came from middle-status churches and two from low-status denominations, while three and Xwo of the Republicans came from these categories of religious groups respectively. It might he pointed out that high-status denominations, as well as Protestant sects, have been overrepresented on the Court, while Roman Catholics have been under- represented. Furthermore, church members as a whole have been overrepresented; where at least twenty-three of the twenty-eight judges were church members, only 55.3 percent of the total population come under this category.

RACE AND ETHNIC ORIGIN It is scarcely necessary to note that no Negroes served on the Supreme Court of Pennsylvania during the period under study. This is true despite the fact that in 1950 (the Census nearest the median of the years in which the judges under study came to the Court) Negroes constituted 6.1 percent of the population of P1ennsylvania."' Donald R. Matthews notes that "Perhaps the nmost striking feature of the American system of stratification is the castelike position of the Negro."-s Since, as we have noted, there is a tendency for judicial personnel, at least on the higher levels, to he recruited from the higher strata of society, Negroes lhave not had, at least up to the present time, much of an oppor- Itunity to reach important decision-making positions in the judicial system of the Commonwealth. Given the tendency to recruit judicial personnel at the tipper levels from the higher strata of society, it is to be expected that bnost of the justices here studied have descended from nationality Croups that swelled the waves of early immigration to this country. 'hliat is, we should expect most of the justices to be of English or

Pnnisylvania, Department of Internal Affairs, Pconsistvauia Statistical .[stact, 19Q52 (Harrisburg: Bureau of Publications, 1962), p. 6. Matthews, The Social Background of Political Decision- Makers. p. 24. 258 PENNSYLVANIA HISTORY

Northern European family backgrounds (see note to Table 10). In fact, fifteen of the judges bad familiar roots in the British Isles, while another seven came from families of Central European -chiefly German-origin. In all, twenty-three of the justices could trace their ancestry to Northern European families.39 Table 10 presents the data in more detail.

TABLE 10

JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: ETHNIC ORIGIN

Nuimber of Justices Ethnic Origi- Democrats Republicans Total British Isles 3 (10.7%) 12 (42.8%) 15 (53.6%) Northwestern Europe 1 ( 3.6%) 0 1 ( 3.6%) Central Europe 2 ( 7.1% ) 5 (17.8%) 7 (25.0%) Eastern Europe 1 ( 3.6%) 0 1 ( 3.6%) Southern Europe 1 ( 3.6%) 0 1 ( 3.6%) Unclassified 2 ( 7.1%) 1 ( 3.6%) 3 (10.7%) Total 10 (35.8%) IS (64.3%) 28 (100%)

Note: Northwestern Europe includes Scandinavia, except Finland, the Low Countries, France, and Switzerland. Central Europe includes Ger- many, Poland, Czechoslovakia, Austria, Hungary, and Yugoslavia. Eastern Europe includes the USSR, the Baltic States, Finland, Rumania, Bulgaria, and European Turkey. Southern Europe includes Greece, Italy, Spain, and Portugal.

It is evident from Table 10 that while the ethnic origins of the Democrats were widely dispersed, the ethnic roots of the Repub- licans were sunk exclusively in the British Isles and Central Europe. It is true that six of the ten Democrats were Northern "'The national origin of the justices was determined by finding the nationality of their fathers' surnames through use of the following sources: Elsdon C. Smith, Dictionary of American Family Names (New York: Harper and Brothers, 1956) ; Ernest Weekly, Surniames (London: John Murray, 1927) ; and Charles W. Bardsley, A Dictionary of English and Welsh Surnaines (New York: Henry Frowde, 1901). In addition, other information (for example, country from which ancestors emigrated) was used where appropriate. The variation caused by taking into account mothers' surnames was so slight as to be negligible. PENNSYLVANIA SUPREME COURT JUSTICES 259

I .uropran in origin; but it is also true that two representatives Of other areas did reach the Court through the Democratic Party, Shile none did so through the Republican Party.

EDUCATION All of the justices have been, of course, graduates of secondary .clhools. Nineteen of them attended public schools; six private or parechial schools; and three, at various times, both public and private schools. Table 11 presents an enlarged picture of these

TABLE 11 J USTICES OF THIE PLNNSYXLVANIA SUPRtEME COURT, 1933-1963: SECONDARY EDUCATION

A um11ber of Justices I rpc of School Democrats Republicans Total

I'Liblic 6 (21.4%) 13 (46.4%) 19 (67.8%) 'rivate or P'arochial 3 (10.7%) 3 (10.7%) 6 (21.4%) Hoth 1 ( 3.6%) 2 ( 7.1%) 3 (10.7%) 1otal 10 (35.7%) 18 (64.3%) 28 (100%)-

Surprisingly, in view of the somewhat greater tendency noted previously for Republicans to come from the upper class, thirteen attended public secondary schools, in comparison to six Democrats. Three of the ten Democrats attended private or parochial schools; ]niythree of the eighteen Republicans did so. Despite their attendance at public secondary schools, the justices cxhibited a pronounced proclivity for private colleges and univer- Aities. All of the justices, save one on whom no data were available, attended some sort of institution of higher learning. Twenty-three uclges enrolled in private colleges and universities; only three matriculated in state institutions; one attended both a private and sstate institution. Furthermore, a tendency existed for the judges lo attend Pennsylvania colleges and universities. Twenty justices Suldied at Pennsylvania institutions, while only six went to out- 'rate colleges. One judge enrolled at both an in-state and an out- 260 PENNSYLVANIA HISTORY of-state institution. Of the jurists who cast their lot with Pennsyl- vania colleges, eight attended the University of Pennsylvania. No other Pennsylvania institution can claim more than two justices as alumni. Five of the six judges who studied at other than Penn- sylvania schools went to what might be called "prestige" colleges.4', Among these are Princeton, Columbia, and Williams. Democrats were more disposed to go to college outside of the Commonwealtl, as three of the ten Democrats attended such schools, while onix three of the eighteen Republicans did so. Since justices of the Pennsylvania Supreme Court are rcquired to be learned in the law, 41 all of thenm have had legal training. Twenty-four attended law school, while four who sat during the early part of the period under study read law. Nineteen justices attended law schools in the Commonwealth. Of these, thirteen were graduated from the University of Pennsylvania Law School. Dickinson, with three, had the next largest number of alumni reach the Court. Five justices studied at out-of-state law schools -Harvard (two judges), Columbia, the University of Virginia, and Georgetown. Again the Democrats demonstrated a somewhat greater propensity to go outside of the state than did the Repub- licans. Three Democrats and only two Republicans attended such schools.

CAREE R As previously noted, justices of the Supreme Court of Pennsyl- vania are required to have legal training. As a result, all of the judges under consideration had as their major nonpolitical occupation the practice of law. Most of them, eighteen, were general practitioners of law. Five specialized in corporate practice, two in property relations law, and one in criminal law. No infortmation was located for two judges. "0"Prestige" schools here are taken to include the Ivy League institution. and twcnty other outstanding Eastern schools-Amherst, Bates, Bowdoiii, Brown, Clark (Maine), Colby, Franklin and Marshall, Hamilton, Haver- ford, Hobart, Lafayette, Lehigh, Middlebury, Rutgers, Swarthmore, Trinit) (Conn.), Tufts, Union (N. Y.), Wesleyan, and Williams. See Matthew, U1. S. Sena tors and Their World, p. 28. Under this definition, fifteen justices attended "prestige" schools. Of this number six were Democrats and nine were Republicans. This is again surprising in view of the somewhat greater tendency noted above for Republicans to have come from the upper socio- economic stratum. 111851, April 15, P.L. 648, sec. 3. PENNSYLVANIA SUPREME COURT JUSTICES 261

Sixteen of the justices were members of law firms, seven were iot, and on five no data were available. Republicans demonstrated A much greater penchant for law firms than did Democrats. Of lie Republicans, twelve were law firm members; only four I)cmocrats were. Nineteen of the judges originally practiced law in a city (for these purposes, a city is defined as having over 100,000 population). All began practice in Pennsylvania with the exception of Drew, who was initially admitted to the bar in New York. The Democrats were more likely to begin practice in an urban setting than were the Republicans. Where nine of the ten Democrats initiated practice in a city, ten of the eighteen Republicans did so. Eight judges (seven Republicans and one Democrat) originally practiced law in a town (that is, a place of between 2,500 and 100,000 population) ; for one of the jurists no information on this point was available. Sixteen judges indicated that they were members of the Amer- ican Bar Association. There was little difference between Repub- licans and Democrats in this respect; ten Republicans and six Democrats were among this total. Twelve justices did not list the ABA among the various organizations of which they were mem- hers. Failure to list membership is not proof of nonmembership, but may be evidence that membership, if held but not listed, lacks salience. In addition, fifteen justices said that they were members of a local bar association. There were six Democrats and nine Re- lublicans among this group. Thirteen judges did not indicate that they were members of a local bar association. The Pennsylvania Bar Association claimed eighteen of the Justices as members. Among them were fourteen Republicans, but only four Democrats. Ten judges failed to note that they were ue1nbers of the Pennsylvania Bar Association. Three justices .Arnold, Simpson, and Schaffer) were past presidents of the Pennsylvania Bar Association, and several other judges had held tlher important positions in the organization. Nine justices listed membership in all three bar associations-a local bar association, lhe Pennsylvania Bar Association, and the American Bar Associa- ion. Seven Republicans and two Democrats were among this total. John Sclbmidhauser reports that nearly two-thirds of the justices 262 PENNSYLVANIA HISTORY of the United States Supreme Court came from what he calls "America's 'political families.' " These families, he maintains,

.have been able to transmit intangible, yet real advantages to their children. These advantages have in- cluded not only the prestige of possession of a "political" name and family connections in a local, state, or even national political organization, but also a true political education which is derived from the practice and famil- iarity with political activity, the encouragement of political ambitions, expectations, and perhaps a veritable sense of destiny respecting high political achievemenrt. 4 2

Few, if any, justices of the Pennsylvania Supreme Court qualify as being members of "political families." Twelve judges were the only members of their families to be politically active. Another twelve came from families of which at least one other member was active in politics. In eight of these twelve cases, this person was the judge's father. In four cases background is lacking on family political activity. Perhaps Chief Justice Bell and Justice Patterson come as close to being members of "political families" as any members of the Court. Chief Justice Bell's father had been Attomney General of Pennsylvania, and his mother was the daughter of a Congressman. Of Justice Patterson's family, his son, Marion l). Patterson, Jr., says

The Patterson family in Blair County has always been politically active and have always been very much Re- publican. Justice Patterson's father was a member of the House of Representatives for 4 terms commencing in 1896 and expiring on December 1, 1910. The brother of the Justice, the Honorable George G. Patterson, was Re- publican County Chairman; was appointed by Governor James to fill the unexpired term of the Justice on the Common Pleas Bench of Blair County; was thereafter elected to a full term-.4

All of the judges (save one, for whomn no information is available) were, however, public officeholders before reaching the Court. This finding is quite similar to the situation with respect to the United States Supreme Court, all of the members of that court hav-

12 Schmidhauser, The Supremie Court, pp. 33-34. "1Letter from Marion D. Patterson, Jr., Hollidaysburg, Pa., n.d. PENNSYLVANIA SUPREME COURT JUSTICES 263

TABLE 12

JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: PRIOR PUBLIC OFFICES

Prior Experience in Public Office (in Years) .1ftstice Admiinistrative Legislative Judicial Total

AIpern 14 0 6 20 Arnold 8 0 8 16 I ,arnes .5 0 0 .5 Bell 14 0 0 14

- lBok 4 0 22 26 C(hidsey 12.5 0 0 = 12.5 Cohen 1 10 0 11 ] )rew 6 0 20 26 <'agen 7 0 18 = 25 ] razer 0 2 18 20 Hughes 10 0 14 24 *lones, B. 4 0 5 9 Jones, C. 0 0 5 5

Keim 8 0 4 12 Kephart 8 0 5 13 . - I adner 10 0 13 23 i inn 0 0 13 = 13 McBride 4 0 0 4 MNaxey 6 0 11 17 .\Iusmanno 0 3 19 22 ('Brien 15 0 14 29 - I 'arker 0 0 14 14 I'atterson 16 0 12 28 koberts 6 0 11 17 "Schaffer 26 0 0 26 li>nj)son n.d. n.d. n.d. n.d. Stearne 0 0 15 15 Stern 0 0 15 15 264 PENNSYLVANIA HISTORY

TABLE 13

JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: PRIOR JUDICIAL EXPERIENCE

Coart on which Justive Served Previously (Length of Service Given in Years)* Justice CoJ1. Pleas Orphans Superior Other Total

Alpern 6 o o 6 Arnold 0 8 0 8 Bok I!i 0 0 22 Drew IA1 1 8** 20 Eagen I.8 0 0 18 Frazer I18 0 0 18 Hughes I14 0 0 14 Jones, B. 0 0 0 5

Jones, C. 0 0 5*** 5 Kenm 4 O - 4 Kephart 0 5 0 5

Ladner 0 0 0 13 Linn 0 13 0 13 Maxey 11 0 0 11

Musmanno 16 0 3** 19 O'Brien 14 0 0 14 Parker 6 8 0 14 Pattcrson 12 0 0 12 Roberts 0 0 0 11 Stearne 0 0 0 15 Stern 15 0 0 15

*Figures on this and Table 12 are (approximate because of the inexact form of the data available. **Allegheny County Court. ***United States Court of Appeals. PENNSYLVANIA SU1PREME COURT JUSTICES 265

Mlg had previous public service save Mr. Justice George Shiras.4 ' Frhe mean length of time spent in public office by judges of the Pennsylvania Supreme Court before elevation was 16.5 years. '[able 12 summarizes the public service of the justices of the I'ennsylvania Supreme Court. Of the judges who served on the Court during this period, twenty 1-ad had administrative experience, twenty-one judicial, and only three legislative. The mean number of years previous judicial service among the judges was 9.6. Six justices had no judicial experience before reaching the Supreme Court, six others between one and ten years, fourteen between eleven and twenty vears, and one more than twenty years (Bok, twenty-two). A further breakdown of the judicial careers of the justices shows that by far the most frequently found place for them to have served previously was on a Court of Common Pleas in the Coi- monwealth. Thus, of the twenty-one judges with pre-elevation judicial service, thirteen gained at least a part of it on a Court of Common Pleas, five on an Orphans Court, five on the Superior Court, and three on the bench of some other type of court. Four justices sat previously on two or more courts, one, Drew, having served on three different benches. There was a slight difference between the political parties in so far as likelihood of having had previous judicial service is concerned. Seven of the Democrats had been judges before reaching the Supreme Court, as had fourteen Republicans. The mean years of prior judicial experience for all Democrats was 8.7 years, for all Republicans 10.3 years.43 Many of the justices gained at least a portion of their administrative experience as public prosecutors. Seventeen of the judges were either district attorneys or attorneys general of the Commonwealth vor assistants in these offices). Ten justices never served as a llrosecuting attorney. The career pattern familiar to Pennsylvanians -a *district attorney (or assistant district attorney) becoming a udge of the Orphans Court or the Court of Common Pleas- -llows up eight times among the twenty-eight judges. Service as

"Abraham, Thc Judicial Process, p. 57. ,"These calculations are based on the seventeen Republicans for whom data were available. Thus "all Republicans" in the remaining portion of the ectien on career means the seventeen Republicans on whom information A01t obtainalle. 266 PENNSYLVANIA HISTORY solicitor to a local governmental jurisdiction was also frequently found in the career histories of the justices. Nine justices held such offices at one time or another in their careers. With respect to prior public officeholding, Pennsylvania Su- preme Court justices differ from judges of the United States Supreme Court. Sidney Ulmer reports that during the period 1933-1960 more nominees to the highest federal bench had administrative rather than judicial or legislative experience. 6 The greater judicial experience of the judges of the Pennsylvania Supreme Court during the period 1933-1964 may be attributable to Pennsylvania's practice of an elected judiciary. In a situation in which judges are elected, perhaps the admonitions of the bar associations to choose "qualified" or "experienced" judges operate as a constraint upon those who make temporary appointments to the Court and upon those who decide who gets the parties' en- dorsements in primary elections. Those appointing a judge or endorsing a candidate who is "unqualified" in the eyes of the bar associations or "inexperienced" in holding judicial office know that eventually such an individual will have to face an electorate that can be propagandized by the bar concerning the "unfitness" or "inexperience" of the candidate. A further variance between the United States Supreme Court and the Supreme Court of Pennsylvania can be seen in the "end offices" of the justices of the two courts.4 7 For the 1933-1963 period on the United States Supreme Court, more end offices were administrative than judicial or legislative. 48 For the same period, more end offices of Pennsylvania Supreme Court judges were judicial than administrative or legislative. Only seven end offices were administrative, five of these being attorney generalships of the Commonwealth. No data were available on the public offices of one justice. Six Democrats had judicial end offices, while the end office of fourteen of the seventeen Republicans on whom information was available was judicial in nature. This variance is due in part to the propensity of Democratic governors to appoint cabinet members-three attorneys general and one secretary of

"4"Public Office in the Social Background of Supreme Court Justices," Amterican Jouroal of Economincs and Sociology, XXI (1962), 65. "4"End office" means the last public office held by an individual prior to his elevation to the Court. See ibid., 61 n. " Ibid., 64. PENNSYLVANIA SUPREME COURT JUSTICES 267 revenue of the Commonwealth-to the Court when vacancies occur. This tendency is probably a result of the comparatively recent break by the Democrats of the Republican hold on the politics of the state. Thus fewer Democratic lower court judges would be available for a Democratic governor to choose from, and a Democratic governor might be anxious to appoint someone with a statewide reputation so that that person would have a better chance of winning a full term on the Court should lhe decide to seek a full term (and he invariably has). Or, the governor might simply have political debts to pay. The office of judge of a Court of Common Pleas appears more often (ten times-four times among Democrats and six times among Republicans) than any other end office. Table 14 presents a detailed summary of the data on the end offices of the justices.

MARITAL RECORD Most of the judges, twenty-six, who served on the Court during this period were married, while one (Musmanno) remained a bachelor. It was impossible to determine whether or not one justice

TABLE 14 JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963: END OFFICE

Number of Justices End Office Democrats Republicans Total

Judicial 6 (21.4%) 14 (50.0%) 20 (71.4%o) Orphans Court 1 ( 3.6%) 3 (10.7%) 4 (14.3%) Common Pleas Court 4 (14.3%) 6 (21.4%) 10 (35.7%) Superior Court 0 5 (17.8%) 5 (17.8%) Federal Court 1 ( 3.6%) 0 1 ( 3.6%) Administrative 4 (14.3%) 3 (10.7%) 7 (25.0%) Attorney General 3 (10.7%) 2 ( 7.1%) 1 (17.8%) Sec. of Rev. & Com. 1 ( 3.6%) 0 1 ( 3.6%) Governor 0 1 ( 3.6%) I ( 3.6%) Legislative 0 0 0 No Data 0 1 ( 3.6%) 1 ( 3.6%) Total 10 (35.7%) 18 (64.3%) 28 (100%) 26S PENNSYLVANIA HISTORY was married. Twenty-two justices were married only once, four twice-three justices remarrying after the death of their first wives, one (Bok) after being divorced from his first wife.4 9 On the average, the justices married rather late in life. For the twenty justices on whom this information is available, the average age at the time of first marriage was thirty years. Justice Ladner, at twenty-three, married earliest, Justice Simpson, at fifty-four, latest. Late marriages among the judges are, no doubt, at least partially a result of the lengthy education required of those in the legal profession. No doubt the customs of the times, which called for later marriages than today at least for members of the middle and upper classes, also contributed to this tendency. Custom dictated that a professional man be well established in his career before he should think of marriage. Today, earlier marriages, in which husband and wife share the travails of becoming established, are viewed more favorably and to some extent encouraged-among the middle and upper classes in society. The justices and their wives, on the average, tended to have slightly fewer children than the national average. For the twenty- four justices for whom evidence is available, the average number of children was 2.6; the national average for 1940 was 3.1.50 Several judges had only one child; the largest number of children in any justice's family was five. The same pattern existed in the families of the judges' parents. The average number of children in the families of the twenty-four justices was 4.2. The average number of children per family in 1890 was 5.4."5 The range was greater in this case-the number of children ranging from one to twelve. Furthermore, there were fewer families with only children (one, as opposed to seven).

"Thus the chances that a justice of this Court during this Deriod will be a divorcee are one in twenty-six. The chances that any given marriage will end in divorce in the United States are one in four (1961). See Stuart A. Queen, Robert W. Habenstein, and John B. Adams, The Family in Various Cultures (2nd ed.; Chicago: J. B. Lippincott Company, 1961), p. 306. This fact seems to substantiate the reluctance of voters, and therefore of political leaders, to place divorcees in high public office. ° William F. Ogburn and Meyer F. Nimkoff, Sociology (2nd ed.; Boston: Houghton Mifflin Company, 1950), p. 474. "51Ibid. PENNSYLVANIA SUPREME COURT JUSTICES 269

MILITARY RECORD

Althcuoh not all of the justices were young iman at a time when the call came to serve in the armed forces of the country during a time of crisis, eleven of them served in the military at one time or another, some more than once. Seven of the eleven were officers for at least a part of their service. Of the remaining justices, ten did not serve in the armed forces and information is unavailable for six.

PUBLICATIONS Being persons of considerable prominence and ability in the state of Pennsylvania, the justices of the Supreme Court have authored numerous published works. Because of the great difficulty involved in locating works other than books and the greater interest and significance attached to this type of publication, this study will concentrate upon the judges as authors of boolks or parts of books. Six justices were the authors of one or more books. Justice Simpson wrote a work entitled A Treatise on Federal Jinpeach-

?zents, Justice Barnes was co-editor of a casebook on constitutional law, and Justice Ladner produced the famous treatise, Couveyanc- ing in Pennsylvania.52 Chief Justice Stern authored two books and was co-author of another.35 He also wrote four biographical articles for the series, Great American Lawyers.54 Justice Bok is perhaps best known as an author for his four novels. Two of these are somewhat autobiographical in nature,55 and another expresses

5 Alexander Simpson, Jr., A Treatise on Federal Impeaclunents (Phila- delphia: n.p., 1916) ; H. Edgar Barnes and Byron A. Milner, Selected Cases in Constitutional Laze (Philadelphia: Lyon and Armor, 1912) Grover Cleveland, Conv'eyancing in Pennsylvaua (Philadelphia: Bisel, 1913). "5Horace Stern, The Limitations of the Power of a State under a Reserved Right to Amend or Repeal Charters of Incorporation (Philadelph'a: Law Department, University of Pennsylvania, 1905), and The Spiritual Values of Life (Philadelphia: Jewish Publication Society of America, 1953). Cyrus Adler, Irving Lehman, and Horace Stern, Louis Marshall: A Biographical Sketch and Memorial Address (New York: American Jewish Committee, 1931). 5'W. D. Lewis (ed.), Great American Lawyers (8 Vols.; Philadelphia: John C. Winston, 1907). Chief Justice Stern wrote biographies of William Tilghman (Vol. II), Josech P. Bradley (Vol. VI), Samuel Freeman Miller (Vol. VI), and Stephen J. Field (Vol. VII). 5Curtis Bok, Backbone of the Herring (New York: Alfred A. Kuopf, 1941), and I, Too, Nicodemus (New York: Alfred A. Knopf, 1946). 270 PENNSYLVANIA HISTORY

vividly his opposition to capital punishment. 5 6 Bok's last novel was published posthumously.5 7 He also contributed to volumes on civil liberties and contemporary problems, 55 chaired a committee that produced a work on foreign policy,5 9 and wrote a volume on criminal law.'0 The most prolific author on the court has been Justice Musmnanno. He is the author of one novel9 and nine works of non-fiction.0 2 While some of these books have to do with the law, few could he considered legal treatises. In this respect Justice Musmanno resembles Justice Douglas of the United States Su- preme Court, the most prolific writer on non-legal subjects on that tribunal in recent years.

"Star I[ ormcood (New York: Alfred A. Knopf, 1959). "Curtis Bok, Mlfaria (New York: Alfred A. Knopf, 1962). "ISHenry Steele Commager, et al., Civil Liberties Under Attack (Phila- delphia: University of Pennsylvania Press, 1951) ; and John Kavanaugh, ed., The Quake Approach to Contemporary Problems (New York: Put- nam's, 1953). ' American Foundation, Committee on Russian-American Relations, The United States and the Soviet Union (New York: American Foundation 1933). Justice Bok had had the relevant and interesting experience of having worked in a factory in Moscow in 1932; thus, his qualifications for serving as chairman of this committee were impressive. 6Curtis Bok, Problems in Criminial Law (Lincoln, Neb.: University of Nebraska Press, 1955). "Michael A. Musmanno, Ascoltate il fionme (Listen to the River), (Firenze, Italy: Vallecchi Editore, 1947). "'Michael A. Musmanno, Proposed Amendments to the Constitution (Washington: U. S. Government Printing Office, 1929) ; After Twelve Years (New York: Alfred A. Knopf, 1939) ; Ten Days to Die (Garden City, N. Y.: Doubleday and Company, 1950); Across the Street from the Court- house (Philadelphia: Dorrance, 1954); Justice I1usmnanno Dissents (Indi- anapolis, Ind.: Bobbs-Merrill, 1956) ; Verdict! (Garden City, N. Y.; Double- day and Company, 1958) ; The Eichmann Kommnandos (Philadelphia: Macrae Smith, 1961) ; II generate Mark W. Clark (The Soldier and the Mlan), (Milan, Italy: Arnoldo Modadari Editore, 1946) ; and La guerra non i'ho voluta io (The War in Italy), (Firenze, Italy: Vallecchi Editore, 1948. Another work often listed as a book or novel is Black Fury. See Musmanno, Verdict! p. 119. This work does not appear in any of the standard sources of bibliographical and publications data under either the title or Justice Musmanno's name, however. A motion picture entitled Black Fury (see ibid.), for which Justice Musmanno seems to have written the scenario was made. See "America's Interesting People," American Magazine, CXXI (March, 1936), 47. See also a letter to the author from Robert E. Scudder, Head of the Social Science and History Department, Free Library of Philadelphia, Philadelphia, Pa., December 4, 1964. Thus it seems that nowhere except in biographical sources is Black Fury alluded to as a book or novel. Justice Musmanno has continued to publish since the end of the period under consideration here in 1963. This list is therefore not up-to-date for this prolific author. PENNSYLVANIA SUPREME COURT JUSTICES 271

THE "TYPICAL" JUDGE

Thus it may be said that the "typical" judge who sat on the bench of Pennsylvania's highest court during this period was born in an urban area in Pennsylvania of native-born parents who were of either the upper or upper-middle class. His father was a professional, a proprietor, or an official. Without exception, this typical judge was white. He had ethnic ties with the British Isles or Central Europe. A Protestant, generally a member of one of the higher status denominations, he attended a public secondary school in the commonwealth and then a private college and law school within Pennsylvania's borders (often the University of Pennsylvania and/or the University of Pennsylvania Law School). Beginning general practice of law in a Pennsylvania city, he eventually became a member of a law firm. After marriage at about age thirty, he and his wife had two or three children. Typically, he was a Republican who gained experience as an administrative official (often as a prosecuting attorney or solicitor), later becom- inig a lower court judge or state administrative officer, and then a judge of the Supreme Court at about age fifty-seven, often initially by appointment rather than by election. After serving approximately twelve years on the Court, he died in office near age seventy. Although some differences immediately become evident, this composite picture of the judges of the Supreme Court of Penn- sylvania who sat between 1933 and 1963 resembles very closely some other collective portraits that have been written concerning other groups of judges. For example. Timothy G. Higgins says of the Wisconsin Supreme Court :G'

the theoretically typical justice of the Wisconsin Supreme Court possesses the following attributes: He is a member of the bar and has been practicing law for 29 years; he has had prior experience in public office having served in top-level administrative positions and/or as a circuit judge; he has been selected for the Bench by gubernatorial appointment rather than popular election: he is 54 years of age; he has been born in the United States and probably in Wisconsin; . . . he is an active church member affiliated with one of the more conserva- ",""The Justices of the Wisconsin Supreme Court," 1949 Wisconsin Law '7c''icue 738 (1949), 748-749. 272 PENNSYLVANIA HISTORY

tive sects, Catholic, Episccpal, or Presbyterian; he is college-educated and probably a graduate of the Univer- sity of Wisconsin Law School. After selection this theoretically typical justice will spend at least 10 years on the Court: . . . and he will either die as a member of the Court or he will resign because of the onset of his last illness.

The similarities between these two composites are striking, and no important differences are in evidence. However, the collective portrait of the judges of the United States Supreme Court does not match quite so closely the composite picture of the judges of the Pennsylvania high Court. As to the United States Supreme Court, John Schmidhauser writes:64

Throughout American history there has been an over- whelming tendency for presidents to choose nominees for the Supreme Court from among the socially advantaged families. The typical Supreme Court justice has invariably been white, generally Protestant with a penchant for a high social status denomination, usually of ethnic stock originating in the British Isles, born in comfortable circumstances in an urban or small town environment. In the earlier history of the Court, he very likely was born in the aristocratic gentry class, although later he tended to come from the professionalized upper-middle class. Whereas nearly two-thirds of his fellows were selected from politically active families, a third of his fellows were chosen from families having a tradition of judicial service. In college and legal education, the average justice was afforded opportunities for training and associations which -were most advantageous. It seems reasonable to assume that very few sons of families outside the upper, or upper-middle, social and economic classes have been able to acquire the particular type of education and the subsequent professional, and especially political, associations which appear to be unwritten pre- requisites for appointment to the nation's highest tribunal.

This description of the "typical" justice of the Supreme Court of the United States seems to indicate that that tribunal is more of a "closed society" than is the Supreme Court of Pennsylvania. The emphasis on politically active families and on families with

"03Schmidhauser, The Supreme Court, p. 55. PENNSYLVANIA SUPREME COURT JUSTICES 273

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Ili I 274 PENNSYLVANIA HISTORY a traditional attachment to the bench does not appear nearly so strongly in the composite portrait of *the judges of the Pennsyl- vania and Wisconsin courts. Furthermore, political "connections" do not appear so prominently in the Pennsylvania and Wisconsin composites as they do in the portrait of the "typical" judge of the United States Supreme Court. These differences may be due to choices made by the authors as to what to emphasize, or they may be real differences based on such factors as the differences in the method of selection of the judges-for example, election for the state courts and appointment for the United States Su- preme Court-and the difference in the prestige levels of the courts involved. It seems more likely, however, that the differences among the composite portraits of the judges are real differences rather than differences in interpretation among the writers of these verbal pictures.