Neo-Behavioralism—A Rebuttal

^{page 951 note 1} Schubert, (ed.), Judicial Decision-Making (New York, 1963).

^{page 951 note 2} The Roosevelt Court (Chicago: University of Chicago Press, 1948), p. xi.

^{page 952 note 3} Kort, , “Simultaneous Equations And Boolean Algebra In The Analysis of Judicial Decisions,” Law And Contemporary Problems, Vol. 28 (1963), pp. 143, 160. Despite its date, this was published in August, 1963.

^{page 952 note 4} As to Alfange's assertion that “Pritchett is most emphatically not a behavioralist,” see my response to Pritchett, above.

^{page 952 note 5} 359 U.S. 344 (1959).

^{page 952 note 6} 360 U.S. 474 (1959).

^{page 952 note 7} For opposite responses to the over-broad opinion of the Court, see Thornhillv. Alabama, 310 U.S. 88 (1940), and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the former, there were no qualifying opinions, but the Court's language was cut down to size in a series of later decisions. In Youngstown, every judge who supported the “opinion of the Court” wrote a qualifying opinion-thus presumably reducing the occasion for surprise and apparent reversal in future cases. It has been said that the absence of qualifying opinions in Thornhill is due to a tradition which precludes them in a case involving a judge's first opinion for the Court.

^{page 952 note 8} See Strauss, , “An Epilogue” in Storing, Essays On The Scientific Study of Politics (New York: Holt, Rinehart and Winston, 1961), p. 308.

^{page 952 note 9} Ulmer, , “Supreme Court Behavior And Civil Liberties,” The Western Political Quarterly, Vol. 13 (1960), p. 311.

^{page 953 note 10} See, however, Robert Dahl's behavioral conclusion: “… the role of the Court as a policy making institution is not simple; and it is an error to suppose that its functions can be either described or appraised by means of simple con-cepts drawn from democratic or moral theory.” “Decision Making In A Democracy: The Role of the Supreme Court As a National Policy-Maker,” Journal of Public Law, Vol. 6 (1958), p. 293.

^{page 953 note 11} Loc. cit., note 9, above, pp. 295, 311.