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 policymakers 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 apportionment 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 function, 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 sociological 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.
The Social Background of Political Decision2 Donald R. Matthews,
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 socioeconomic backgrounds of these judges are investigated in an attempt to clarify factors operative in the Pennsylvania political
vsy
tem 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 commonly 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 directories such as f7 hIo's W/ho ai the East and the Directory of
J,11icrican Jntdges. Newspaper and periodical articles were consulted 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 appoilltment 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, twentyeiglht persons served on the Supreme Court of Pennsylvania. Of
thiese, eighteen -were Republicans and ten were Dlemocrats.6 Republican 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, Hert~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. Democratic 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 complexion 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. According to Edward F. Cooke and G. Edward Janosik, "Pennsylvania 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 twentyTGuide
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,
LENGTH OF SERVICE
l ength of Scrvice,
1933-1963:
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 comnfoleting 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 newcomer 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,
MEAN AGE ON COMING TO THE COURT
Initially reached
Court by:
1933-1963:
Demlocrats
Republicans
Total
_kppointinent
56.7
(6)
58.6
(9)
57.S
(15)
I lection
55.0
(4)
57.8
(9)
56.9
(13)
Total
56.0
(10)
58.2
(18)
57.4
(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 betwxeen 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
For
r purposes of further calculations in this section (on age), these five
f'stices will be excluded.
7
This 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 Pennsylvania 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 birthplaces 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, Rinehart 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
Type of
Place
Numbebr of
Justices
Percentage of
Populations,
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
"'Schmidhauser,
The Siuprevie Court. p. 36.
that have been long
2,52
PENNSYLVANIA HISTORY
TABLE 5
JUSTICES OF THE PENNSYLVANIA SUPREME COURT,
RESIDENCE ON COMING TO COURT
1933-1963:
Pcrccntage of
Population,
Place
Number of
Justices
City
16 (57.1%)
30.7%
Town
11 (39.3%)
35.8%
1 ( 3.6%)
33.5%
Type of
Rural Area
Total
28 (100%)
Statewide
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.: Doubleday, 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
ot Partnts
B~irthplace
Nunber of
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 decisionmakers 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 Accompanying 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,
"`Ibid.
" "A
The Social Background of Political Decision-M11akers, i). 23.
Comparison of Indexes of Socio-Economic
'ociological Rc',iezc' XX (June, 1955), 321.
Status,"
Amiericon
PENNSYLVANIA HISTORY
254
TABLE 7
JUSTICES OF THE PENNSYLVANIA SUPREME COURT, 1933-1963:
OCCUPATION OF FATHER
Occubation
of Father
I|
I
Numtiber of Justices
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
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%)
10 (35.7%)
18 (64.3%)
28 (100%)
-
Skilled
Total
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 developed 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,
Socio-EcoNoMIic STATUS
1933-19o3:
Numitber of Justices
Social Class
Demiocrats
Republicans
7 otal
Upper
3 (10.7%)
9 (32.1%)
12 (42.8%)
Middle
Upper-Middle
5 (17.8%)
3 (10.7%)
6 (21.4%)
4 (14.3%)
11 (39.3%/o)
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%,/,)
10 (35.7%)
18 (64.3%)
28 (100%o)
Total
Table 8 shows that Republicans have to a greater extent than
Democrats tended to come from the tpper class. Of all Republicans 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
Democrats
Republicans
High Status
Episcopalian
Presbyterian
Jewish
4 (14.3%)
10
4
4
2
Middle Status
MlethDdist
Lutheran
2 ( 7.1%)
1 3.6%)
1 ( 3.6%)
Low Status
Roman Catholic
2
Unclassified,
Undetermined
Total
(35.7%)
(14.3%)
(14.3%)
( 7.1%)
Total
1936
(50.0%)
(17.8%)
(17.8%)
(14.3%)
1.8%
4.4%
4.3%
3 (10.7%)
2 ( 7.1%)
1 ( 3.6%)
5 (17.8%)
3 (10.7%)
2 ( 7.1%)
5.0%
6.1%
7.1%)
2 ( 7.1%)
4 (14.3%)
23.2%
2 ( 7.1%)
3 (10.7%)
5 (17.8%)
10 (35.8%)
18 (64.3%)
1 ( 3.6%)
1 ( 3.6%)
2 (7.1%)
14
5
5
4
of Pa. Pop.
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: 193 6 (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 exient 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 underrepresented. 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
P1
ennsylvania."' 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 opporItunity 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.
PENNSYLVANIA HISTORY
258
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.3 9 Table 10
presents the data in more detail.
TABLE 10
JUSTICES
Ethnic Origi-
British Isles
Northwestern
OF THE PENNSYLVANIA SUPREME COURT, 1933-1963:
ETHNIC ORIGIN
Nuimber of Justices
Democrats
Republicans
Total
3 (10.7%)
12 (42.8%)
15 (53.6%)
1 ( 3.6%)
0
1 ( 3.6%)
Central Europe
2 ( 7.1% )
5 (17.8%)
7 (25.0%)
Eastern Europe
1 ( 3.6%)
0
Southern Europe
1 ( 3.6%)
0
1 ( 3.6%)
1 ( 3.6%)
Unclassified
2 ( 7.1%)
1 ( 3.6%)
3 (10.7%)
Total
10 (35.8%)
IS (64.3%)
28 (100%)
Europe
Note: Northwestern Europe includes Scandinavia, except Finland, the Low
Countries, France, and Switzerland. Central Europe includes Germany, 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 Republicans 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 univerAities. 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
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-
lo
260
PENNSYLVANIA HISTORY
of-state institution. Of the jurists who cast their lot with Pennsylvania 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 Pennsylvania 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
(two judges), Columbia, the University of Virginia,
-Harvard
and Georgetown. Again the Democrats demonstrated a somewhat
greater propensity to go outside of the state than did the Republicans. Three Democrats and only two Republicans attended such
schools.
CAREE R
As previously noted, justices of the Supreme Court of Pennsylvania 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, Haverford, 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 socioeconomic 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 American Bar Association. There was little difference between Republicans 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 memhers. 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 Relublicans 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 Associaion. Seven Republicans and two Democrats were among this total.
John Sclbmidhauser reports that nearly two-thirds of the justices
PENNSYLVANIA HISTORY
262
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 included 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 familiarity 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 Republican. 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 Republican 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 hav12
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,
PRIOR PUBLIC OFFICES
1933-1963:
Prior Experience in Public Office (in Years)
.1ftstice
Admiinistrative Legislative
Judicial
Total
AIpern
14
0
6
20
Arnold
8
0
8
16
0
0
14
0
0
14
4
0
22
26
12.5
0
0
Cohen
1
10
0
11
] )rew
6
0
20
26
<'agen
7
0
18
] razer
0
2
18
20
0
14
24
9
.5
I ,arnes
Bell
.5
-
lBok
C(hidsey
Hughes
10
=
=
12.5
25
*lones, B.
4
0
5
Jones, C.
0
0
5
5
12
Keim
8
0
4
Kephart
8
0
5
13
10
0
13
23
i inn
0
0
13
McBride
4
0
0
4
17
.
-
I adner
=
13
MNaxey
6
0
11
.\Iusmanno
0
3
19
22
15
0
14
29
('Brien
-
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
PENNSYLVANIA HISTORY
264
TABLE 13
JUSTICES OF THE PENNSYLVANIA SUPREME COURT,
PRIOR JUDICIAL EXPERIENCE
1933-1963:
Co art 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
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
12
0
0
12
Roberts
0
0
0
11
Stearne
0
0
0
15
15
0
0
15
Pattcrson
Stern
-
4
*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 Coimonwealth. 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.
PENNSYLVANIA HISTORY
266
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 Supreme 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' endorsements 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
6 (21.4%)
1 ( 3.6%)
14 (50.0%)
3 (10.7%)
Common Pleas Court
Superior Court
4 (14.3%)
0
6 (21.4%)
5 (17.8%)
Federal Court
1 ( 3.6%)
0
Administrative
Attorney General
Sec. of Rev. & Com.
Governor
4 (14.3%)
3 (10.7%)
1 ( 3.6%)
0
Legislative
No Data
Judicial
Orphans Court
Total
Total
20
4
10
5
1
(71.4%o)
(14.3%)
3 (10.7%)
2 ( 7.1%)
0
1 ( 3.6%)
7
1
1
I
(25.0%)
(17.8%)
( 3.6%)
( 3.6%)
0
0
0
0
1 ( 3.6%)
1 ( 3.6%)
18 (64.3%)
28 (100%)
10 (35.7%)
(35.7%)
(17.8%)
( 3.6%)
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 twentyfour 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.
"51
Ibid.
PENNSYLVANIA SUPREME COURT JUSTICES
269
MILITARY RECORD
Althcuoh not all of the justices were young iman at
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.
a
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, Couveyanc2
ing in Pennsylvania.5
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 (Philadelphia: 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 Supreme 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: Putnam'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 Courthouse (Philadelphia: Dorrance, 1954); Justice I1usmnanno Dissents (Indianapolis, Ind.: Bobbs-Merrill, 1956) ; Verdict! (Garden City, N. Y.; Doubleday 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 becominig 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 Pennsylvania 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 University 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 overwhelming 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 prerequisites 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
"03
Schmidhauser,
The Supreme Court, p. 55.
PENNSYLVANIA SUPREME COURT JUSTICES
273
11)
1:1
1
1
11
')
11
Ilzi
Tl
I
l
't;
zz
1-1
0
C,5
u
"I
C-1.
T,
a)
U
lz
14
11
'4
-u
*K
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 Pennsylvania 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 Supreme 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.