litigation, the nominating or appointing power is not likely to
be insensible of the party advantages that may result from its
decision in a particular way by the highest judicial authority,
nor of the importance of the vote to be cast by each who may
share in its administration.

During the Civil War Congress passed a conscription law. The
Supreme Court of Pennsylvania pronounced it unconstitutional, and
advised the issue of a temporary injunction to prevent its
enforcement by the officials charged with that function. The
term of the Chief Justice was about to expire. The decision had
been made by three judges, of whom he was one, against two who
dissented. The political party to which he belonged renominated
him, but he was defeated at the polls. A motion was soon
afterwards made to dissolve the injunction. His successor joined
with the former minority in advising that the motion be granted,
and on the ground that the Act of Congress was not
unconstitutional. The two remaining members of the court adhered
to their former opinion.[Footnote: Kneedler _v._ Lane, 45
Penn. State Reports, 238. See this case reviewed in Pomeroy,
"Introduction to the Constitutional Law of the United States,"
Sec. 479.]

In some States the justices of the Supreme Court select one of
their number annually to be Chief Justice for the year ensuing.
In several, whenever there is a vacancy, the office falls, as of
course, to the justice who has the shortest time to serve. This
is a ready way to pass a title about and attach it to as many men
as possible in quick succession. Its ostensible defense is that
there can be no unfair discrimination and favoritism in such an