66. Eight old men (and Potter Stewart)

The modern era of criminal law was born on June 19, 1961, when the Supreme Court issued Mapp v. Ohio, holding that held the non-textual fourth amendment exclusionary rule not only exists but applies in every state court criminal prosecution. 

Of the nine sitting justices of 1961, six were born in the 19th century: Frankfurter (b. 1882), Black (b. 1886), Warren (b. 1891), Douglas (b. 1898), Harlan (b. 1899) and Clark, the author of Mapp (b. 1899).  Justice Whittaker was born in 1901, while Justice Brennan first saw the light of day in 1906.  Potter Stewart, the baby of the Brethren, was born in 1915.

That means that eight of the nine justices were already born when Freud and Jung made their historic visit to the United States in 1909.  The justices were members of the last generation before popular psychology.  They lived through the 1930s craze for psychoanalysis that encouraged people like Judge Jerome Frank to make fools of themselves.  They also lived through the American reaction to all that Viennese obscurantism, the post-War can-do spirit of B.F. Skinner's behaviorism, which had its vogue in the 1950s.

For the eight old men on the Court, and for Potter Stewart as well, all of the various dogmatic schools of psychology were new.  Those of us born in later years can never return to the kind of intellectual innocence with which they, and all of their generation, first confronted Freud's and Skinner's ideas.

Today we accept, almost without thinking about their origin, the ideas represented by terms such as ego, libido, defense mechanisms, unconscious wishes.  But we discard, almost without intellectual effort, the crackpot grandiosity of so much of Freud's project.  Nine-tenths of what he wrote is simply ignored today.  Similarly, we can be comfortable with the idea of, say, intermittent reinforcement (it explains casinos, for instance) without experiencing any desire to live in Walden Two.

A skeptical-but-receptive attitude toward psychology is very nearly universal among educated Americans.  But the eight old men of 1961's Supreme Court didn't have the benefit of the experience, and insight, of the generation or two that separates them from most of us today.   They learned psychology as adults, and, like a person who learns a new language as an adult, they never fully mastered it.

That, I think, goes a long way toward explaining the justices' naive faith in the verities of behaviorism.  Mapp provides a view into what educated laymen in 1961 understood about B.F. Skinner's work. 

The age of the Warren Court justices is significant to our understanding of their jurisprudence in another way, too.  Three of them were already born when Henry Clay Frick unleashed the Pinkertons on the striking steel workers in Homestead.  They all lived through the 1930s, when union organizers were prosecuted for "criminal syndicalism" and police and National Guard troops were deployed against strikers, often with fatal results.  The phrase "Memorial Day Massacre" resonated with them in the way that "Kent State" did for a later generation.  This 1934 piece from The Nation gives a feel for the era.  Kevin Starr's wonderful Endangered Dreams provides both the detail and the panorama.

When we consider the times through which the eight old men (and Potter Stewart) lived, and the shock that the Wickersham Commission's report must have given them, we can better understand their belief in the need for rules of engagement to control police contact with citizens.  With considerable reason, they viewed the police as something like an occupying army, not a force that responded to the will of a democratic polity but very nearly the opposite.

I think these two views were fairly widely-held among older lawyers in the late 1950s: behaviorism explains all;  cops are lower-class thugs.   When you put them together, the solution almost jumps out at you.  The way to control the police is to employ the modern science of psychology, ca. 1960.  Provide negative reinforcement in the form of a withheld conviction and, voila! - watch the problems melt away.