AETEI‘UDES AND IDEOLOGY ON THE ”WHITE SUPREME COURT i910 ~ {$20 The-sis far the Dag?“ of Fig.0. mmumn @1853?! UNIVERSITY D'CWALD MEL WVITX‘ ZQTQ- {HFQ‘S‘ This is to certify that the thesis entitled Attitudes and Ideologies on the White Court, 1910-1920 presented by Donald C. Leavitt has been accepted towards fulfillment of the requirements for PhoDo degree inPOligiQa; Science I ”If,“ //-'£ a a m ‘- fly ‘ i Major 1‘), I essor Date 23 April 1970 0-169 ABSTRACT ATTITUDES AND IDEOLOGY ON THE WHITE COURT. 1910-1920 By Donald Carl Leavitt The method used in this study was to categorize the non-unanimous cases of the 1910-1920 Supreme Court and form Guttman scales on the basis of those categories. The period was split into two halves and separately sealed for the 1910-1915 and 1916-1920 periods. The rankings of the Jus- tices were determined for each scale. This was hypothesized as measuring the Judges' attitudes on this issue. The inter- relationships between the scales (attitudes) was measured by a rank correlation (tau). and the resulting matrix of the relationships was factor analyzed. Thus the clustering of attitudes into attitude systems. value systems and ideolo- gies was determined. Both R- and Qpanalyses were run as well as varimax. Quartimax. and Oblique rotations. There appeared to be a lack of party conflict on economic and class matters on the White Court. Justices' decisions early in the period seemed based more on tradi- tional and legal issues such as federalism. Judicial powerw Donald Carl Leavitt and the Commerce power. In the second period. the Court became polarized along a liberal-conservative continuum based on the Progressivist ideology. This ideological divi- sion is not along party lines but appears to gradually develop into a party division by the time of the Stone Court. Multivariate analyses of the decision-making behavior of the White Court revealed that on both periods of the Court the following attitude systems were prominent: Liberal Nationalism and State Progressivism (reflecting Progres- sivist programs at the two levels of governmental power). Federalism. Libertarianism. General Welfare. and Laissez- fairism. In addition. the first period contained the atti- tude systems of Commerce Power and Judicial Restraint. and the second period contained a Darwinism attitude system. Analyses of the whole period also identified an attitude system composed of party-related issues. These attitude systems explained from 7“ to 80 per cent of the variance contained within the data. Political party-related issues on the Court coincided with traditional party differences. These were federalism. Judicial power. libertarianism. general welfare. and civil rights. The Democratic ”ideology” was states' rights oriented. democratic. liberty-oriented. pro-general welfare. and unsympathetic to Negro civil rights. The Republican Donald Carl Leavitt ”ideology” was nationalistic. for Judicial power. pro- government on liberty issues. for special interests (business). and sympathetic to Negro civil rights. A maJority of the decision-making behavior on the Court was related to off-Court political influences and experiences: Progressivism and political party. A Northern. Eastern. and urban environment seemed to have influenced Justices to be favorable to Progressivist programs. One-third of the Guttman scales reveals some shifting in Justices' attitudes. Congruity theory appears to explain much of the shifting of attitudes between the two periods. Thus the influence of certain reference symbols or sources on attitude change seems clear. The evidence seems overwhelming that political party as a reference symbol seems to have influenced the Republicans to be much more liberal on Liberal Nationalism in the first period than in the second. The early Republican leadership of national Progressivism and of the administrations which inputted most of the cases in Liberal Nationalism in the first period seemed to account for this. The Democratic capture of that leadership and the national government reversed this situa- tion causing attitude change on the part of the Republicans (and Democrat white) in line with the reference symbol of party. Donald Carl Leavitt Similarly sociometric relationships also affected attitude change. Brandeis' persuasiveness either in terms of his personal influence or his thorough research and marshalling of evidence behind his opinions had a signifi- cant impact on White Court decision making in the second period. That influence was particularly pronounced in influencing Holmes to a much more liberal position on Progressivist issues. In analyzing individual Judge's rankings of seven values based on this study. Democratic Judges significantly ranked states' rights. democracy. and liberty higher and also ranked general welfare slightly higher than Republican Judges. Progressivist Judges seemed to significantly sup- port the values of equality. the general welfare. and democracy higher than non-Progressives. TIT'DES L‘ .“ I F.- ’f".~': “ coca-s 1?}? \c 3‘ 11‘ bar“ Micki-”9v . t~ f“ “a. g ‘0: 1 h QC’t‘f‘: ATTITUDES AND IDEOLOGY ON THE WHITE SU?REME COURT 1910-1920 By Donald Carl Leavitt A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Political Science 1970 1., ,1 Q C? $13-0 Ic- ACKNOWLEDGMENTS I wish to thank Professor Harold Spaeth for his encouragement and help as well as the inspiration of his methodological and theoretical contributions in the field of Judicial behavior to which this work is heavily indebted. I am also indebted to the National Institute of Mental Health for the use of grant funds (MH 15365-01) used in computer research in this study. as well as the political science department of Michigan State University who also made available additional computer time for this study. Finally. I wish to thank my wife. Donna. for the long hours spent typing the drafts and final cOpy of this dissertation. 11 TABLE OF CONTENTS LIST OF TABLES LIST OF FIGURES Chapter 1 THE PSYCHOLOGICAL ANALYSES OF THE WHITE COURT The Scope of this Study The Data Methodology Multidimensional Analyses Theory Underlying these Procedures SCALOGRAM ANALYSIS OF WHITE COURT ATTITUDES Definition of Scales ATTITUDINAL FACTORS OF THE COURT. 1910-1915 ATTITUDINAL FACTORS OF THE COURT. 1915-1920 ATTITUDE SYSTEMS OF THE 1910-1920 WHITE COURT: CONTINUITY AND CHANGE The Open System IDEOLOGIES ON THE WHITE COURT Party Ideology Traditional Party Voting Bases Party Influences on the Supreme Court Roll-call Analysis of Congress The Impact of Historical Events on Party Ideology Ideological Bases of the Parties Conclusions Progressivism Darwinism The Ideology of the Justices 111 Page vi 151 192 236 2&8 258 260 263 265 269 271; 280 281+ 28? AAR,“'I\.YR&' .‘.- "~'.\~,. a 05‘s ‘- H." «pa..- ua "‘ .4 V\ '. r.,"““ ‘rr, ‘ .. ...a .- NF."1“R‘V d.._.\ ao~ " AH“9 J4. I the! "A“. 5.... V ' ' .p 4-! rl‘ “ a. ..8 . 'A'lllel-_“ V‘s“. K“ .v-Ae‘fi .l._...~“ . 4- .1. 0‘ 7“ ..€. raga. 9 Au- '- u v , .Tu .--:..‘ '\ . ~..MIV “geatn- .a’a‘. V.~O-H~ “ laeaasu-ud -‘ .‘AA 0...... - '~ A..1.' ' ‘1‘ ed ' “1.“:4._ c- .\ . “4‘.V‘A'l ‘ . an. V..In. :7-“ fr“ \‘ .‘ “A: as. 7“”. ° W b- ‘- “Qa Qn‘s. "“AF 4 9 I A. . -0! «.9141:- ”“.‘."t‘-“ -‘ v“'O-u ‘9'. _I Q P ,5 a" 6 ‘ or . .. ’1" . .' V " 2’“??? "0M‘a y — \A, b - .‘E""A"‘h 'lal P .. r‘e a... 9 A h “3‘“: ‘ _ 1h ‘ “a".‘o‘ U ‘-‘ as“ “0“!“ “A -\.x" V’C a !\-.., an; Ta '0 catch " “vb Cc. _‘_ - ‘- A ““98 A, 'a N 12‘5“" 9' V‘a 6; 'u. iv Chapter Page 7 THE VALUES OF THE JUSTICES 29 Comparisons between the Justices 318 R SOCIOLOCICAL AND POLITICAL INFLUENCES ON THE COURT 331 Ranking the White Court on SES 334 Comparison of SES and Party with other Courts 336 Other Sociological Influences on the White Court 351 Political Socialization and Political Symbols 359 Reference Symbols in Politics 373 9 OTHER DETERMINANTS OF INDIVIDUAL JUDGES' ATTITUDES 375 Bloc Analysis 378 Dogmatism 390 Individual Experiences and Philosophies of the Justices 398 Harlan #01 Lurton ”06 Lamar #08 Hughes “12 Pitney #17 van Devanter 423 Day . b28 McKenna #32 McReynolds uuo ' White “46 Clarke ”54 Brandeis #62 Holmes “69 10 CONCLUSION 483 BIBLIOGRAPHY 507 APPENDICES 1 Cases Used in Study 521 II Names of Cases in Appendix I 536 III Cases Used in Scales 547 APPENDICES IV Ranks of Justices on Scales V Non-scaled Responses for Individual Justices in Scales VI Ranks of Various Courts on Socioeconomic Status. Political Party. Economic and Libertarian Attitudes VII Reason for Classification of Justices in Ranks: Father's Socioeconomic Status and Occupation VIII Political Party and Socioeconomic Status Relationships with Attitudinal Variables IX Shifts in Ranks of Justices between the Two Periods Studied X Ranks of Justices on Background Variables XI Scale of Economic Cases on Fuller Court XII Scales of Liberty Cases on Fuller Court Page 560 565 567 570 572 571+ 576 579 580 Table A 10 11 12 13 LIST OF TABLES Names of Scales Common to Both Periods Names of Scales Used in Only Party of Study Scales Constructed and Reproduceability Criteria 1910-1915 Period Variable Content of Attitudinal Factors for 1910-1915 Period Highest Loadings of Variables Across Various Factor Analysis Solutions Content of Factors Identified by Pattern Analysis Fifty-Variable Varimax Solution. 1910-1915 Tests for Commonality among Variables Contained in Factors Product Moment Correlations Between Factor Scores White Court Justices' Average Ranks for Major Factors and Loadings on Q-Analysis. 1910—1915 Variable Content of Attitudinal Factors for 1916-1920 Period Highest Loadings of Variables Across Various Factor Analysis Solutions Content of Factors Identified by Pattern Analysis Six Dimensional. Fifty-Variable Varimax Rotated Factor Loading Matrix. 1916- 1920 Period vi Page ue #9 50-53 101 103-1ou 105-106 127 138 13s 1&6-1u7 159 160-161 l62-16b 173 Table 15 l6 l7 19 20 21 23 2h 26 27 28 vii Factor Loadings of 5-Dimensiona1. ul-Variable Oblique Rotation Factor Analysis. 1916-1920 Period Tests for Commonality among Variables Con- tained in Factors Product Moment Correlations Between Factor Scores Correlations between Oblique Factor Axes from the 50-Variab1e. 7-Dimensiona1 Solution White Court Justices' Average Ranks and Factor Scores for Major Factors and Loadings on Q-Analysis. 1916-1920 Variable Content of Attitudinal Factors for Analysis of Scales fer Whole Period. 1910-1920 Highest Loadings of variables Across Multi- variate Analysis Solutions of 1910-1920 Variables Correlations between Oblique Factor Axes from the UQ-Variable. 6-Dimensiona1 solution. 1910-1920 Period Tau Rank Correlations between Average Ranks for Factors in 1910-1920 Period White Court Judges ranks on Party. Progres- sivism. and Socioeconomic status Six Dimensional. Fourty-nine Variable Quartimax Rotated Factor Loading Matrix. 1910-1920 Seven-Dimensional. Forty-nine Variable Varimax Rotated Factor Leading Matrix. 1910-1920 Comparative Sizes of Factors Across Time Periods White Court Justices' Average Ranks for MaJor Factors and Loadings on Phi Q- Analysis for Whole Court Analysis. 1910-1920 Page 174 181 181 185 186 197-198 199 201 201 202 210 211 213 218 Table 29 30 32 33 31» 35 36 37 39- 39 #0 #1 #2 “3 viii Judges' Shift in Attitudes toward Liberal Nationalism Tau Correlations and Significance Levels between Pairs of Corresponding Scales for Ranks of Seven Justices Sociometric influences on Justices' Rank Shifts Johnson (19#3) Study of Senate Roll-call Party Issues: 1880-19#0. Individual Judges' Ranks on Importance of Attitude Systems to Them. 1910-1920 Rank Order of values in Individual Judges' value System for Separate Periods of the Court and for the Whole Period. Retaining Original Direction of Values in value Rank Order of values in Individual Judges' Value Systems. All Values in Positive Direction Relationships between SES. Party. Economic and Liberty Attitudes on various Courts Correlations of Attitude Systems with Background variables Shapely-Shubnik Power Indices. 1916-1920 Terms Judges' Rate of Dissent on White Court. 1910-1920 Matrix of Phi Intercorrelations'Between 11 Justices of the White Court for the 1910- 1915 Period Matrix of Phi Intercorrelations Between 9 Justices of the White Court for the 1916- 1920 Period Matrix of Phi Intercorrelations between 13 Justices of the White Court for the Whole Period. 1910-1920 Possible Measures of Dogmatism on the White Court Page 22#-225 239 ram: 265 295-298 303-304 305 338-339 352 376 377 379 379 381 395 Table II III TV V VI V I I VIII IX Cases Names Ranks ix Used in Study of Cases in Appendix I Used in Scales of Justices on Scales Non-scaled Responses for Individual Justices in Scales Ranks of Various Courts on Socioeconomic Status. Political Party. Economic and Libertarian Attitudes Reason for Classification of Justices in Ranks: Father's Socioeconomic Status and Occupation Political Party and Socioeconomic Status Relationships with Attitudinal Variables Shifts in Ranks of Justices between the Two Periods Studied Ranks of Justices on Background Variables 567 570 572 57“ Figure u 10 11 12 LIST OF FIGURES Scale of Criminal Due Process Cases: 1910-1915 Scale of Criminal Due Process Cases: 1916-1920 Two-Dimensional Factor Analysis varimax Solution of #3-Variab1e ”Exclusive Scales" Two-Dimensional Factor Analysis Varimax Solution of 50 Refined Scales. 1910-1915 Two-Dimensional Varimax Solution of 29- variable Progressivism Factor. 1910-1915 Two-Dimensional Varimax Solution of 21- Variable General Libertarian Factor. 1910-1915 Two-Dimensional Varimax Solution of 22- Variable Liberal Nationalism Factor. 1910-1915 Two-Dimensional varimax Solution of 15- Variable State Progressivism Factor. 1910-1915 Two-Dimensional varimax Configuration of lZ-Variable Libertarian Factor. 1910- 1915 Two-Dimensional varimax Solution of 1#- Variable Federalism Factor. 1910-1915 Quartimax Configuration of 2-Dimensiona1 Solution of Exclusive #l-Variable Factor Analysis. 1916-1920 Period Quartimax Configuration of Two-Dimensional Solution of Refined 50-variable Factor Analysis. 1916-1920 Period X Page 59 60 118 123 129 130 132 133 135 136 166 167 figure 13 1n 15 16 17 18 19 20 21 22 23 2# 25 26 xi Page Quartimax Configuration of Two-Dimensional Solution of l9-Variab1e Progressivism Factor. 1916-1920 176 Varimax Configuration of Two-Dimensional Solution of 15-Variab1e Autonomy Factor. 1916-1920 Period 177 Varimax Configuration of Two-Dimensional Solution of l6-Variable Libertarianism Factor. 1916-1920 Period 178 Hierarchical Relationships among Factors 183 Hierarchical Relationships among Factors of a Quartimax #9-Variable Factor Analysis 196 Principle Axis Configuration of Two- Dimensional Solution of #9-Variable Factor Analysis. 1910-1920 200 Hierarchy of Attitudes. Values. and Ideology 2#9 Location of values and Attitude Systems and their Antitheses in Two-Dimensional Space. White Court. 1910-1920 255 Pattern Analysis of Judges' Individual Attitude Systems for Each Period of White Court 300-302 Graph Comparing Banks of Attitude Systems Laissez-faire and Libertarianism for 13 Justices. 1910-1920 Period 319 Graph Comparing Banks of Attitude Systems ' State Progressivism and Liberal Nation- alism for 13 Justices. 1910-1920 319 Graph Comparing Ranks of Attitude Systems Federalism-Commerce Power with Liber- tarianism-Judicial Restraint for 13 Justices. 1910-1920 323 Graph Comparing Ranks of Attitude Systems Federalism-Commerce Power with Progressivism for 13 Justices. 1910-1920 323 Graph Comparing Attitude Systems Progres- sivism with Libertarianism for 13 Justices. 1910-1920 326 xii Figure Page 2? Graph Comparing Ranks of Attitude Systems Darwinism and Progressivism for 13 Justices. 1910-1920 - 328 28 Graph Comparing Factor Scores of Attitude Systems Judicial Restraint and Liberal Nationalism for 13 Justices. 1910-1915 328 29 Blocs of Justices identified by McQuitty Pattern Analysis 382 3O Graph of Progressivism Factor Score Composite with Libertarianism-Federalism Factor Score Composite. 1910-1915 Period 387 31 Graph of Progressivism Factor Scores with Libertarianism-Federalism Factor Score Composite. 1916-1920 Period 38? 32 Graph of Two-Dimensional Configuration of Factor Loadings based on Phi Correlations Locating Bloc Associations of Justices of White Court. 1916-1920 Period 392 x1 Scale cfi‘ Economic Cases on Fuller Court 579 x11 Scales of Liberty Cases on Fuller Court 580 l: Ely- as,“ I CHAPTER 1 THE PSYCHOLOGICAL ANALYSIS OF THE WHITE COURT __g‘§gggg‘g§,£h$§,§£gg1,--This analysis focuses on the decision making of the Supreme Court during the Chief Justiceship of Edward White1 and covers the October 1910 term through the October 1920 term. Its objectives will be to (1) ascertain the dominant factors influencing Supreme Court decision making during the time period. (2) investi- gate the relationship between attitudes. values and ideology in that decision-making process from a psychological point of view. (3) investigate the determinants of the above factors. e.g. political party. family background. sociological or per- sonal factors. and (#) examine the influence or impact on these attitudes and values of prevailing ideologies or philo- sophical frameworks of this historical period. Hence. the study attempts to investigate relationships among concepts of psychology. political science. and political thought. 1It also includes three cases after Chief Justice Fuller's death but before White's elevation to that office and five cases after White died but before Taft's appoint- ment. These cases might more properly be considered as part of the ”Harlan Court" and the "McKenna Court“. 1 It has been hypothesized that early ideological con- flicts have continued throughout our history to the present time. being transmitted and applied to new political con- texts and generations (Peterson. 1960). This hypothesis may be operationalized by studying Supreme Court attitudes and ideology. The nature of the transmission process and reasons for the positions of the Justices might be found in political. sociological. personal. or philosophical influences. By consulting biographical data and testing the correlations between these suggested variables and the factors identified. evidence of connections may be shown. Political party and family seem particularly fruitful for examining the trans- mission of values and ideology. The period from 1910 to 1921 was one where the Court greatly extended the power of the national government in particular and government in general.2 It also laid the groundwork for modern day civil liberty doctrine. (Warren. II. pp. 689-756: Kelly and Harbison. 1963. chap. 22: Mason and Beaney. 1959. pp. 187. 250. #1#-#17. 518. 57u-577: Rodell. 1955. p. 188: Link and Catton. 1967: PP. 113-117). 'Yet it has been neglected in terms of intensive analysis. Furthermore. this is one of the few periods of history lxrior to 1932 where the Court had a close balance of party representation. It is one of the earliest periods when ZIt must be admitted that it transferred some state power to the federal sphere. however. popular discontent and grievances exerted a heavy influence on government to bring about genuine intervention within society. and a period when competing ideologies were actively influencing citizenry and public officials alike. (Hofstadter. 1955a. 1955b: Link and Catton. 1967. pp. #-30). Hence. this period appears ideal to examine party and ideological influences on Judicial decision making as well as the influence of external political influences on the Court. In this study. scalogram analysis was applied to the nonunanimous cases analyzed. ranks for the Judges on each scale determined. the resulting rank correlations between the scales then factor analyzed. the factors compared to McQuitty- type analyses and further analyzed. and Q-analyses run on the Judges. The resulting factors and scales and their con- tent of cases were then analyzed in the light of biographical data and possible historical and philosophical influences. The Data.--0n1y the nonunanimous cases of the time period were used. All of these in the periods studied were included. The study was broken into two periods. comparable in terms of number of cases used and in length of time. The breaking point was the end of the October 1915 term after the death of Lamar in January 1916. the resignation of Hughes in June. and soon after the death of Lurton in July 1915. but before Brandeis and Clarke Joined the Court in October 1916.3 Hence. it was a natural breaking point 3Brandeis formally took his seat on June 5. 1916. but heard no cases in that month. ' for our study. Used in the study were l#6 cases with dissents for the first period and 207 cases with dissents for the second. Cases with no dissents but concurring votes totaled 2# for the first period and 27 for the second. Finally. voting preferences were determined for cases with both concurrences and dissents or separate dissents. This was made on the basis of a Judgement upon the content of the dissenting and concurring opinions. These additional voting divisions totaled nine for the first period and #1 for the second. Thus the first period included 170 cases and the second period included 23#. The entire study involved #0#. Total voting divisions came to 180 for the first and 275 for the second. #55 overall. Finally. to break ties in scale ranks. voting divi- sions in periods previous to and following the periods studied were consulted. The October 1908 and 1909 terms were used in their entirety. These cases and others add 108 cases to our analysis to give a grand total of 512 cases and 563 voting divisions. The cases and citations are listed in Appendices I and II. Methodologx.--The basic research design for this type of study is presented in previous studies (Spaeth. 1967: see also Spaeth. 1965: Schubert. 1965a). The underlying .ul 5... 14,4 lint l'.' r l u; \ a "a. l 0" ‘uv: l!- J 1... .‘ attitudinal constructs in the data are determined by first categorizing each case on the basis of the legal and semantic content of its maJority. concurring. and dissenting opinions. then the categories are tested to see if they form Guttman scales on the basis of the Judges' votes for the maJority decision. The original classifications are based on legal and political issues of the times previous to and contempo- rary with the study. No attempt was made at first to form exclusive categories. that is categories in which cases fit in only one classification. The attempt to form scaleable categories which included ell_of the universe of nonunanimous cases was successful. Other obJectives in constructing scales included formulating scaleable categories with as specific a content as possible and to approximate as near as possible to perfect reproduce- ability (a coefficient of reproduceability or C.R. of 1.00) in each category-scale. (See Figures 1 and 2 in Chapter 2 for sample scales.) Criteria for forming scales listed in Torgerson (1958. p. 32#) were used. The criteria involve (1) excluding the marginal frequencies in calculating C.R.. (2) reJecting scales with a C.R. below .85. (3) refining or reJecting scales with a nonrandom pattern of errors. and (#) using at least 10 items or cases. .A nonrandom pattern of errors indicates that a second variable or dimension exists in the data. However. there is evidence that reproduceable scales are not really unidimen- sional (Spaeth. 1967. pp. 11-1#). Many scales in this study which had C.R.‘s of above .90 were found to contain two dimensions. If the nonrandom errors occur within the same case. the case should be dropped as belonging to another dimension. If it is the respondent or Judge who makes consistent non- scale responses. a second dimension is suggested and the scale should be refined or divided into two sub-scales. each based on separate dimensions. If the scale is too small. this cannot be done. It was noted that in both periods. McKenna and Pitney both had a proportionately large number of non-scale responses. This may be due to McKenna's senility and stroke. (McDevitt. 19#6. p. 228) and Pitney's attempt to Justify his decisions on the New Jersey courts or follow New Jersey common law. or perhaps it was due to values which were distinct from those of the other Justices. In any case it is likely that any scale would result in non- random non-scale responses for these Justices. The requirement of 10 cases or more for a scale has been attacked on the basis that there is no theoretical basis for it. (Spaeth. 1967. p. 10: Guttman. 1950. p. 79). This requirement is supported by the finding that four-item scales can have high C.R.‘s by mere chance although the items are independent. Furthermore. larger scales reinforce the evidence that respondents are indeed acting consistently. that the assumption of transitivity is met (Torgerson. p.28). Nevertheless. we are seeking specificity in the content of our scales and practical constraints exist on category refinement and size. such as limits to the number of cases decided within the time period and the retirement of Judges over time (Spaeth. 1967. p. 5). Such specificity is a maJor advantage of our logitudinal approach (Spaeth. 1967. ll. 17) as compared to a term-by-term study (as found in Schubert. 1965a). Furthermore. we have other measures of consistency such as tie-breaking cases and comparisons between the two time periods. as well as other indicators of relationship such as case semantic content. Nonetheless. we must be ready to qualify the reliability of the ranks of the quasiscales that do not meet all criteria. The level of C.R. which is acceptable is a debatable one. Many accept .90 or even higher as evidence of "unidi- mensionality" and hence scaleability. (Spaeth. 1965. p. 300; Spaeth. 1967. p. 11: Schubert. 1965a. p. 79). Even the .90 ilevel of C.R. must be obtained after dropping the marginal items and then comparing it with the minimum marginal repro- duceability for respondents (MMRi) which is the lower bound for C.R. We have dropped non-computable cases (that is. the marginal cases with less than two dissents or concurrences) 1J1 calculating C.R. and MMR1 (see Table 3). Each initial scale with a C.R. below .90 has been refined into two or more scales distilling out the additional dimensions. 8 We are left with nine scales below .90 out of a total of over 80 scales for both periods. Of these only two are below .88. In addition. we have a dozen or so quasiscales that are too small to allow the calculation of a meaningful C.R. (less than four Computable cases). These quasiscales were used in parts of our analysis when they displayed dis- cernable differences in Judicial ranks on an issue of interest to our study. Furthermore. the unrefined scales (containing several attitudinal dimensions) were also used at times to locate a more generalized version of an attitude (e.g. a federalism scale measured this general attitude although it had been refined into federalism in economic matters and federalism in non-economic issues). All C.R.‘s. moreover. exceed the MMRi by at least .09. which is equivalent to Schubert's results (1965a. p. 79). Furthermore. even high C.R. scales may be multidimen- sional. (Spaeth. 1967. pp. 3. 5-6. ll-l#). This is sup- ported by the theory that attitudes may be the interaction of two or more entities (Rokeach. 1968a. 1968b). Hence. speaking of a C.R. which proves unidimensionality is super- :fluous. All non-scaled responses may be due to additional tuuiiscovered attitudes. so that we may refine scales indef- iJritely until we get perfect ones or exhaust the universe. Hence. a high C.R. may only be evidence of a more highly refined or more specific attitude. 9 One final point on C.R. may be made. If the universe is unidimensional. we can pick items at random and still come up with a satisfactory scale (Torgerson. 1958. p. 332). Hence. if the universe is unidimensional all subscales would be suspect. For example. studies of the Roosevelt and Hughes Courts (Pritchett. 19#8: Mattingly. 1969) suggest unidimensionality and studies of the Warren Court suggest two dimensions or less (Schubert. 1965a). Hence. a blanket. uncritical acceptance of a criteria of .90 to identify subscales. that is attitudes more spe- cific than the underlying dimensional ideology of "liberal- ism". would result in constructs which may be meaningless. for example. if the cases form one large scale with a C.R. of .90. However. if no single underlying dimension is present. the requirements of C.R. might conceivably be lower. This seems to be the case in our data as subsequent analysis will reveal. Other than the previously mentioned exceptions the Spaeth criteria (1965) were used. A liberal vote by a Justice was given a plus and a conservative vote a minus. ILiberal is defined as anti-business. pro-government in eco- :nomic cases. pro-worker. pro-small business when in conflict with large businesses. pro-competition in monopoly cases. .and pro-civil liberty (Spaeth. 1966. pp. 17-19). In some cases a liberal vote had to be inferred. Liberal directions ‘were defined as pro-state in federalism cases and pro- tninority or'pro-underdog in cases involving Indians and 10 aliens. for example. The cases were ordered according to the number of plus votes and within these limits cases and respondents were ordered so as to reduce the non-scaled responses to a minimum. Ranks were then assigned for each Judge according to the Judge's last consistent positive vote. The Judge with the most consistent positive votes would be given a rank of one and so on. Inconsistent negative votes are ignored except when ties occur. Non-participations occur- ring on the boundary between plus and minus votes would be divided evenly between plus and minus votes. If ties still occurred. cases or rank positions in the other period of the study would be used to break them. Otherwise cases used in other periods of the Court in which the tied Judges cast votes were consulted. (See Appendix I). These tie-breaking cases were not used in calculating the C.R.‘s. hence. we have additional support for the consistency of our ranks beyond what the C.R.‘s indicate. assuming invariance of the Judges' attitudes over time. The scales underwent a lengthy step-by-step process of refining and definition. Sixteen scales were constructed for the second period. Based on these categories and others 32 scales were constructed for the first. Factor analysis and careful examination of these scales suggested more refine- ment until over 50 scales were obtained for both periods. Much of the refinement consisted of splitting scales into two or more specific scales. A Judicial £232; quasiscale for the first period was divided into five smaller. more specific ll scales. Then a process of collapsing scales into more gen- eral scales was begun to see if scaleability increased or remained high. Quasiscales were dropped. Banks of the Judges on partisanship. "Progressivism". and socio-economic status were constructed on the basis of biographical data and these were added as variables reflecting personal or ideological influences on the Judges' attitudes. Hence. a 26-variable first period universe and a 29-variable second period universe were factor analyzed. Finally. exclusive scales were constructed in which cases which appeared in two or more scales were assigned to only one scale. Hence. scales in which overlap or duplication of cases was minimized were constructed. This universe of #3 scales for the first period and #1 for the second was then factor analyzed to examine and eliminate the effect of any bias which such dupli- cation might have on the factor analysis results. The data was divided into two time periods as mentioned above. Scales were constructed for each period and also for the total eleven-year period. Scales based on the total period contained many gaps in voting due to the fact that only 9 of the 13 Judges were on the Court at one time. Hence. in these scales. one-third of the data are missing. The consequences are (l) arbitrariness in assigning ranks to Judges and lower reliability of ranks so assigned. (2) highly inflated C.R.‘s and (3) many missing ranks which prevent the scaling of issues which appeared in only one period or introduces additional possible error variance in the sub- sequent factor analysis. 12 Furthermore. studying both periods independently and comparing the results presents some interesting opportuni- ties. if care is taken to construct scales with equivalent content in both periods. The reliability of the scales can be tested. We can compare the maJor factors of the two periods to test their validity and stability or suggest rea- sons for differences that appear. We can compare the ranks on equivalent scales of the Justices common to both periods to see if the attitudes are stable as some authorities sug- gest (Spaeth. 1967. p. 2: Schubert. 1965a. pp. 228-3#). and. if not. we can look for eXplanatiOns of why not. This may consist of new sociometric situations as new Justices Join the Court or of new political situations. The first period of the study deals largely with cases arising under Repub- lican national administrations or laws: and the second deals exclusively with cases arising during a Democratic national administration. Multidimensional analyses.--Each scale is a construct *which represents an attitude or attitudinal variable. Each variable ranks the Judges on its continuum. Relationships can be determined between these constructs by correlating the:ranks for the Justices between each pair of variables. GVrLs gives a matrix of relationships or correlations which can be factor analyzed to reduce the data to its principal Lumierlying constructs. The basic correlation used here is Kendall's tau rank correlation-"(See Schubert. 1965a. pp. 81- EEZ). It is superior to the rho rank correlation in testing 13 significance when 31 is very small (McNemar. 1962. p. 205) as in our case when it ranges from 9 Justices to 13 in the total study. In obtaining a Q-analysis and to compare the factors obtained from using the tau matrix for the attitudinal vari- ables. the phi correlations were computed from the Justices votes on the cases for each period and for the total study (Schubert. 1965a. pp. #9-70: McNemar. 1962. pp. 197-198). This measures the Justices' tendency to vote together in dis- sent or in the maJority as compared to their tendency to vote differently. It results in a cOrrelation between each pair of Judges. For further comparison. product moment correlations of u the Judges' voting tendencies were factor analyzed in a second type of Q-analysis (See MacRae. unpublished). Lastly. to obtain factor scores for the Justices on the resulting factors. product moment correlations between dyads of ranks for the attitudinal variables were factor analyzed,5 These scores theoretically give the respondent's position on the underlying attitudinal dimension or factor. that is the proJection of the respondent's spacial position on that axis. (MacRae. unpublished. pp. #-28 to #-35). “A maJority vote is given a 2.~a non-participation a 1. and a dissent a 0. 5The CDC 6500 computer would only calculate factor scores using this method. ”actor mlysis 1 t 2:: structure 5‘. 31“" an on). 2221: and em - ~~°. . .k ‘ iii-Ova All-owe. I fetev‘r‘w tire Alamo... .Q'fl.‘-:Q‘ 7.95 'AJV'v. 3 ‘ ' ~ 3.3311,}, facto maul" pg . .Jouuul var: n; I .\I ‘ I A‘) a O "' y: “#1 "WV Ass. “'0 1"; ‘Y‘nl ‘- . AH blv e~.‘3ns ‘1AI a'.u ‘ensifina ‘ a t DEaSJn. 1’3: 1 «e \“‘ 'e ‘ u‘ . ..E “If; h' .- 'a‘ ‘ K" :CHctm .."U‘ I. "a l." "‘1 ‘_\ ida ~a"‘e‘ ‘1 e ”5"“: av“s' ‘r ‘- a H w ~a3v z: I Iv' A a v“ P “'0 Va; vb :‘ t. L .1'. \1‘ A‘ ~ A ‘ ‘Q J‘ H “I .5 U 1“ U4c¥ 1# Factor analysis of the product moment correlations is a fac- tor structure similar to the corresponding analysis of tau. Factor analysis can be used to simplify the data matrix and express important aspects of it in terms of a smaller number of underlying variables. It does this by determining the correlation of each variable with the maJor construct. These correlations are the factor loadings. that is the loading or correlation of that variable with the underlying factor. If systematic variance remains in the data. a second factor is extracted and so on until all remaining variance is random error. (Harman. 1967: Torgerson. 1958. p. #01). A further conceptualization is that these loadings are proJections of the variables on arbitrary axes in a multidimensional space occupied Jointly by the variables (Torgerson. 1958. p. #02). Factor analysis classifies the variables into cate- gories with which they are highly correlated. The factor is a new construct which then can be defined by the content of the variables which fall within that factor (or correlate with it). If all of its content variables involve civil liberties. the factor may be defined as "civil liberty.” ‘ It may be noted that we begin with categorical data (yes or no votes) and use it to construct scales giving ranks for the Justices which are considered ordinal data. 15 We then find rank correlations which are analyzed by factor analysis. Factor analysis is a metric procedure. How can we Justify such a procedure on ordinal data? First. since attitudes are psychological attributes with no relevant measureable physical correlate (Torgerson. 1958. p. v). we can never be sure we have an accurate yard- stick to measure them by. What units can we use: items or cases? (See Schubert. 1965a. pp. 10#-112). In psychology a large number of question items can be used to measure the same attitude. In Judicial behavior a difference between one rank and another may be based on dozens of cases. all identical. and have less importance than two cases which have different policy implications. which may shape the econ- omy or the nation for decades to come. (See Mendelson. 1963). In short. we can neither defend nor refute the use of a dif- ference in rank of unity as an interval number instead of merely an ordinal one (see Kerlinger. 196#. pp. #25-#28: McNemara. 1962. pp. 106. 252. 37#-375). Furthermore. when we convert two nine-point ordinal scales into a tau correl- lation. the result is a number which could be any one of over 360.000 possibilities.6 At these odds the hypothetical inequities of assumptions of interval data applied to ordinal data pale into insignificance. Furthermore. to use the 7 monotone criterion in our scaling techniques would be to 69: 7This applies ordinal relations in multivariate analysis. l6 waste a large proportion of the data contained within the tau correlations. (See Spaeth and Guthery. 1969.) Hence. the results from Smallest Space Analysis (Lingoes. 1965: Lingoes and Guttman. 1967) and Kruskal's M.D.S.C.A.L. (Kruskal. 196#a. 196#b) were not used to much extent in this study. These techniques cannot recover adequately geometric configura- tions inputted as data (Spaeth and Guthery. 1969). There- fore. it is highly questionable whether the complex atti- tudinal configurations among clusters of variables can be recovered without distortion by these techniques. Also Coombs' non-metric scaling technique (Coombs. 196#) was considered but reJected for its weak scaling criterion. Another methodological problem arises in the construc- tion of scales and their subsequent multivariate analysis. If the individual case content and voting is multidimensional. and the evidence is strong that many cases are8 as will be seen subsequently. then a case will fit in two. three. or more scales. If the scaled attitudes are related. the cases will also fit in several scales. such as the power of the I.C.C.. government Rate Regglation. and Discriminatory Prices egg Service (see Table 1 below). If a case involves all three issues. it should fit in all three scales. How- ever. the placing of cases in several scales may create a built-in bias. so that in factor analysis we get associations 8For examples of where cases chosen to measure federal- ism also contained other dimensions. see Sprague. 1968. pp. 5. 10-11. 157. 17 among attitudinal variables that could be due solely to sim- ilar case content. Unless we get cases that involve only one issue. this problem inevitably arises. In fact. the prOpor- tion of such "pure” cases is probably low. as the complexity of Supreme Court cases indicates and this data analysis supports. Hence. we must keep track of such duplicates. gain assurance that they do not inordinately influence the ranks of the Justices and. if this is impossible. qualify our find- ings accordingly. Factor analyses were run of scales with exclusive con- tent to eliminate the possibility of this sort of bias. The analyses resulted in no maJor differences. This suggests what might have been inferred from the above discussion: scales must be related in the first place or it would not be practical to have duplicates in these scales without a no- ticeable lowering of their reproduceability. Hence. perhaps worry over duplicates is unnecessary. They merely reaffirm what factor analysis tells us: that these scales are re- lated.9 Their placement in several scales is of little con- sequence to the final result. Since a persistent criticism of factor analysis is that it divides data into artificial categories. attempts will be made to confirm the validity of these factors. The 9Schubert points out (1965a. pp. 26. 71) that factor analysis and cumulative scaling are in theory alternate procedures for measuring the same psychological relationship. 18 reality of these factors cannot be demonstrated as easily as factors which can be seen. described or demonstrated in a contrived experiment. since these are "factors of the mind." Nevertheless. if these factors persist throughout analyses of different categorizations of the data. data based on dif- ' ferent populations of Judges. analyses of samples of vari- ables. and are furthermore present in several kinds of anal- yses of the same data. their correspondence to something real will be increasingly difficult to deny.10 Hence. we might increase the level of certainty to a point where their existence in reality is much more believe- able than the alternate hypothesis--that they have no cor- respondence to reality. The factor analysis was done by C.D.C. 3600 and C.D.C. 6500 electronic computers. The mathematical theory under- lying it is explained in Harman (1967). Cattell (1952. 1965). and Fructer (1954). The method used was the more ”mathe- matically satisfying" principal‘axes ‘or principal factor method (Kerlinger. 196#. p. 661: Harman. 1967. chaps. 6. 8). This method yields a mathematically unique solution unlike the centroid (lgig.). and yields a more complex and often more convenient representation of the set of variables. It maximizes the amount of variance extracted in each solution 10This approach might be somewhat analogous to the study of the electron which cannot be seen and whose movement. speed. and position cannot be predicted. but whose existence is accepted by scientists through indirect evidence. 19 and used an "ellipsoidal fit" for its axes (Harman. 1967. pp. 97. 100-101). It requires communalities in the diago- nal. rather than unities.11 The communality estimates used were the highest correlation in the row. Although more accurate estimates are suggested.12 they were not available in our computer programs. The principal axes solution may not produce factors which are psychologically meaningful. However. if the axes are ”rotated” in the factor space. the configuration of points of the variables is invariate and the maximum of variance explained is not decreased. Hence. solutions showa ing simple structure are sought in which all the variables load as highly as possible on one of the axes or factors (Thurstone. 1947. p. 3358 Harman. 1967. pp. 97-99). Hence. we may define the factor by its variable content. We may rotate axes graphically but this may result in subjective bias. (For example see Schubert. 1962. pp. 90- 106). Quartimax and varimax utilizes more objective methods of accomplishing similar results. Yet Cattell (1965. pp. 209-212) criticizes these methods by arguing that "coopera- tive” factors which occur in nature are suppressed by these :methods. iHe favors a combination of methods. Harman (1967. 11Using unities gives us the “closed model" (Cattell. 1965) which seemed less appropriate to our theory and data. 12Harman (1967. chap. 5) recommends the use of the SQuared multiple correlation of the row. 20 pp. 30k-313). however. advocates these methods. finding that both are more objective approximations to simple structure than graphical methods. choosing varimax as the best approxi- mation. Quartimax. however. makes large values larger and small ones smaller than graphical solutions. and has a ten- dency to a general factor while varimax gives the most par- simonious solution and provides more stable factors. The latter conclusion is not unchallenged (Spaeth. 1967. p. 1h). This study uses principal axes and both of the mathe- matical approximations to simple structure. quartimax and varimax for comparative purposes (Spaeth. 1967. p. 14). varimax is relied on here most heavily for interpreta- tion for the reasons suggested above by Harman. Basically. principal axes and quartimax solutions proved to be quite similar. Both were also comparative to varimax but gave higher loadings to the variables on the first factor. Yet even they indicated a large number of factors in the data (chaps. 3 and h below). The above methods impose the constraint of orthogo- nality on the factors or axes. which carries an assumption of independence of factors. Given the theorized interdepen- dence of attitudes (Rokeach. 1968: Spaeth. 1967. pp. 2-5). not to mention the effects of common political party and other ideological influences on the justices. this assump- tion seems unwarranted. Hence. oblique analyses were made of the matrices whereby the factors may be correlated or 21 non-orthogonal (Spaeth. 1967. DD. 14. 17). This technique does not preclude orthogonal solutions if such give a better fit to simple structure. Some disagreement occurs on the wisdom of using oblique analysis. Cattell (1965. 1952) strongly supports its appli- cation to many problems and Harman (1967) and Kerlinger (196#. chap. 36) endorse it as maximizing the approximation to simple structure. Cattell and Dickman (1962) argue that both mental factors and "natural" factors are in reality correlated and thus orthogonality is a faulty assumption. They offer experimental evidence as support. In opposition. Guilford (l95h. pp. #70-538) argues that the correlation between factors that may be found may be due to spurious influences such as conditions of sampl- ing. the heterogeniety of the population. or other non- psychological determinators. If factors correlate too highly (say above .40). one may be measuring the same fac- tor axes (ibig.). Also this method gives rise to second or third order factors. Cattell (1965) finds this advantageous for an hierarchical analysis. but others seem to regard it as unnecessarily complicating. In the oblique analysis of this data. the biquartimin solution of the general oblimin criterion will be utilized (Carroll. 1957) and will be applied to the orthogonal varimax loadings. 22 The question of the number of factors to be extracted and rotated seems far from settled. Cattell (1965. pp. 190. 203-204) advocates extracting as many factors as mathematics permits and sorting them into true factors. trivial true factors. and error factors. Then he would interpret the true factors. He holds that g n factors would be adequate. ‘However. the trivial and error factors might be due to the use of incorrect communalities as well as other influences not useful to interpretation. Kaiser (1959) concludes that the algebraic criteria. psychometric criteria of reliability. and psychological criteria of meaningfulness (based on eXperimental evidence) all show significance of factors only when the eigenvalue is one or higher (with unities in the diagonal). He finds that statistical criteria of signifi- cance reveals far too many factors. The evaluation of number of factors judging by psycho- logical meaningfulness has been suggested. but this involves some subjectivity. One may arbitrarily decide that factors including only 80% (or 90%) of the variance will be extracted. (See Harman. 196?. pp. 23. 198). A further sug- gestion is the use of Kruskal's multidimensional scaling technique (l96ha. l96hb). When stress is plotted against dimension. a sharp break in the curve should reveal where the dimensionality of the factor structure lies. Supreme Court data. however does not seem to give a sharp break. 23 We will use all the available methods for determining how many factors satisfactorily explain our data. especially meaningfulness or interpretability. However. the Kruskal method is not recommended to others as its results were inconclusive eventhough it used up over 60 per cent of the computer time expended in this study. Since attitudes are theorized as being associated in a hierarchical relationship (Rokeach. 1968; Spaeth. 1967. pp. 2-5). factor analysis. which extracts factors one at a time. can be used to study this hierarchy or relatedness of factors. Oblique analysis can discover their intercorrela- tion. if any. Other alternatives are the McQuitty pattern analyses (1957. 1965. 1966a. 1966b). This method builds successively larger clusters of related variables. He holds that these techniques are comparable in results and approach to factor analysis (1957). My previous studies of Warren Court data partly substantiates this (Leavitt. 1968. pp. 66- 70). Hence. both the validity of our factors and their hierarchical relationship can be tested by the use of these methods on our tau matrices. A refinement of pattern analy- sis by Leighton Price (1969) is also applied. Pattern anal- ysis also is useful for discovering small factors which tend to become submerged in the larger factors of the factor analysis method. The phi correlation matrix of relationships between the judges was factor analyzed and the judges' loadings 24 correlated with their factor scores from the factors in the other factor analyses as well as their average rankings for the variables loading on each of the main factors (one rank- ing for each factor). This allows us to see if the factors from the phi analysis are comparable to those in the tau analysis (see Schubert. 1962). Furthermore. the phi matrix and the Q-analysis give us data as to the existence of vot- ing blocs on the Court and sociometric relationships between the judges. Factor scores give the judges' ranks on the underlying attitudinal factor represented by that factor.13 It is a more precise ranking than merely choosing the variables that seem to load high on the factor and averaging the justice's ranks for these variables. Scores give a weight to each variable corresponding to its association with that factor. In our data these two corresponding measures of the judge's ranks on an attitudinal factor correlated at an average of .95 by the product moment method. Factor analysis of product moment correlations of the raw votes on the cases can give us a comparative Q-analysis :for sociometric relationships as well as locate for us the judges' spatial positions in the factor space 63s can the 13This is implicit in the factor score concept. A factor score is merely a justice's rank on a variable multiplied by its loading on that factor and aver- aged over all factors. Also if the Schubert concept (1965a) is correct that a factor axis is equivalent to a cumulative scale imbedded in the factor space. additional support is given to this interpretation. 25 factor scores for the judges (McHae. 1968). Furthermore. if the cases are used as variables instead of the judges. presumably their position in the factor space could be located also.1u Factor scores can also be used to calculate the dis- tance between justices in g-dimensional space by the for- mula D = (d12 + d22 + ...dn2)% where d1 is the difference“ between factor loadings for the justices for the first fac- tor and so on.15 This distance is the inverse of a correla- tion matrix with the unexplained and error variance left out. This may also be done for the attitudinal variables in fac- tor space to determine which cluster they are closest to. since greater than three dimensions are difficult to repre- sent graphically. An additional approach will use factor analysis. This is the reanalysis of subsets of the primary data matrices which produce high positive intercorrelations (Spaeth. 1967. p. 16). In the original factor analysis of the entire uni- 'verse of variables the largest factors. the first to be extracted. may have a distorting effect upon the analysis which may obscure the presence of smaller factors. These xmxy appear in McQuitty-type analyses. for example. but if 1“The resulting number of factors would be small. how- everq as little definition is extracted from the data in this way. 15This is the more general case of the two-dimensional formula given by Torgerson (1958. p. 252). 'r vb law It . 26 they only involve two or three variables and the factor is related to a larger factor it may never separate out in factor analysis. In order to recover these possible factors. the subsets of variables identified by preliminary gross factor analyses will be separately factor analyzed. If such factors.are really unidimensional. evidence of this will be obtained. If such subsets contain additional factors or can be broken down into subfactors er components. such will en- rich our description of the attitudinal structure. As atti- tudes are theorized to be hierarchically arranged. this method will help test this possibility and more precisely define such a structure if it exists.16 Possible causal factors of the attitudinal structure resulting from these studies have been researched in biogra- phies and legal. historical. and philosophical studies of the era. \Ideology and life experiences of the judges are examined as possible causal factors as suggested by Schubert (196a. chap 3) and others (ibid.). 'Current ideas of political socialization and opinion formation have been consulted (Dawson and Prewitt. 1969: Lipset. 1960: Lane euui Sears. l96h; Campbell. et.a1.. 196a). An examination of the value systems of the judges will “be made from the pattern of rank positions on the attitude scales and underlying attitudinal factors. The non-scale 16Such a structure has been found on the Warren Court from 1957 to 1966. See Leavitt. 1968. pp. 70-91. 27 responses on the scales offer insights as to what factors prompt the judges to reject the major attitudinal dimension followed by the other judges in that category of cases. These may suggest values more important to the judge than the underlying dimension hypothesized. Furthermore. a judge's extremity and consistency on attitudes and attitude factors probably measure his value priorities. These vari- ables may be measured for a factor by applying mathematical tests to a judge's ranks on one factor as compared to his ranks on each of the other factors and to the universe of his ranks on all attitudes. Although this is ordinal data these are merely comparative tests (asking on which factors is he most consistent or extreme). hence. the t-test. F-test. randomization test will be used.17 In addition. evidence of the judges' relative dogmatic behavior will be examined. since it seems to be a central attitudinal construct (Rokeach. 1960). various indirect measures of this might include: the judge's tendencies to dissent and extremityof attitudes. his open mindedness and tolerance. and his other personal attributes. (See also Schubert. 1965a. chap. 8). Theory Underlying these Procedures.--This study seeks ‘to determine the major underlying factors in Supreme Court 17Seigel. 1956. Violating the assumptions of metric 'tests in analyzing this type of ordinal data may still give ‘vaJJd results. HcNemara. 1962. pp. 106. 252. 37h-75; Kerlinger. 196#. p. 428. 28 decision making. The judges are relatively immune to direct political sanctions. They hear the most difficult and com- plex cases in which "the law” and precedent do not give unchallenged answers to the problems contained therein by the very nature of their function and role (Murphy. 196#). Hence. political factors and legal rules are assumed to be less important than the judges' attitudes. The judges are chosen for this Court only after they have undergone a lifetime of legal and political socialization and thereby have well- formed values and attitudes on prevailing issues (Krislov. 1960). In fact they may have been chosen precisely because of the values they possess and the fact that their attitudes are well known (Murphy and Pritchett. 1961. chap. 3: Sorauf. 1968. p. 367). Endowed by their office with supreme authority. to what more authoritative source can they go' than their own preeminent principles? These principles are their own well-formed and often well-known values and attitudes. Judges. then are political decision makers subject to the same psychological principles as other men but removed somewhat from the political battle and permitted to elevate their attitudes and pronouncements to principles guiding our political system.18 (See Spaeth. 1966. chap. 1). 18The question arises as to how this concept can be accepted in the light of studies of the Court “retreating” 'when under attack (Murphy. 1962: Leavitt. 1965) or studies porporting to show gamesmanship (Schubert. 1960) or judi- cial strategy in decision making (Murphy. 1964). While some of these situations are extraordinary. they are still digi. .‘hwh. “WI. I. . r ‘ . .n 29 This study examines the structure of attitudes on the Court. looks for causal influences for those attitudes and possible external influences on them. and seeks to test the permanence of those attitudes over time. The permanence of judges' values is assumed as is the- "relatively enduring” quality of attitudes (Shaw and Wright. 1967. p. 3: Spaeth. 1967. p. 2: Schubert. 1965a. chap. 7). Also the definition of attitudes as hierarchical and inter- related (Rokeach. 1968a. 1968b. Spaeth. 1967. pp. 2-5) is accepted. The methods to be used are particularly appro- priate for using this type of theory since. as noted. the multivariate and McQuitty techniques give a hierarchical structure. Basically. Rokeach's definition and conception of attitudes (1968a. 1968b: see also Spaeth. 1967. p. 2) will be used. but without necessarily accepting his belief con- gruence theory over the Osgood and Tannenbaum (1955) con- gruity theory. (See also Insko. 1967.) Attitudes are oriented in terms of values (ibid.. pp. 178-86). HOkeach (1968a.and 1968c) holds that values transcendentally guide compatible with our theory. First. the number of non- scale responses (from 5 to 10 per cent of the votes) may be accounted for by these influences. Also these stimuli may be treated like the other stimuli of a case. in that threat- ening external influences may decrease the attractiveness of an unpopular or "activist” vote equally for all members of the Court and the same rank ordering of justices toward the issue may still hold. but simply fewer are activated to cast an unpopular vote. Thus the original rank ordering may be upset only when certain judges are particularly more sus- ceptible to outside influences than others. 30 actions and judgements across objects and situations to ultimate end states. Spaeth (1967) Postulates a psycho- logical hierarchy in which several interrelated attitudes form an attitude system. several such interrelated systems form a value and several values form an ideology. Each of the concepts are structural analogues. Schubert also uses the concept that interrelated attitudes form ideologies]-9 In discussing the basic theoretical framework. Spaeth (1967. pp. 2-10) will be relied on closely (and quoted from freely below). As Spaeth points out. the three components of attitude response are the cognitive. affective. and behavioral. The focus of this study must be on behavior. the judges' votes for and against certain issue positions as revealed by the content of Supreme Court opinions. The cognitive component of attitudes will be approached inferentially from this behavior. The cognition referred to is the image or per- ceptual map of reality held by the individual decision maker. Thus a detailed content analysis of the judges' 191967. 1965a. pp. 191-235. Schubert does not really obtain ideologies from the interrelation of attitudes in the manner of the Spaeth model. however. His method consists of passing an axis (centroid) through a bloc or cluster of justices in a phi correlation Q-analysis) and interprets their ideology from the relative position of the bloc with respect to the cumulative scales in the factor space (which are analogous to our attitude systems or attitudinal factors. which may also be derived by using our method of more pre- cise scales using varimax (see Leavitt. 1968). See also Spaeth (1965. 1966. pp. 32-33) who uses less complex methods to arrive at concepts similar to Schubert but does not label the descriptions of the justices' positions as ideologies. These methods seem to utilize the Rokeach model. 31 opinions is necessary. Cognition will be determined from the attitude scales and the interrelations among these atti- tude variables primarily derived from factor analytic tech- niques. Cognition will be examined both from the collective view of the entire Court and from the view of each individ- ual justice. The component of affect will be examined by consider- ing the ranking of values within each judge's attitude. Highly-ranked values should be of high affect. The value rankings will be determined by a detailed analysis of the data in which we will consider the extremity and consist- ency of attitude of each judge as revealed by our attitude scales and the attitude systems derived from factor analysis (see Chapter 7 below). Moreover. the non-scaled responses in the various attitude scales will be examined on the assumption that they are a result of values or attitudes more important to the judge than the main dimension of the scale. If a judge takes an extreme position on an attitude scale and has no non-scaled responses. it may logically be inferred that this attitude is of high salience to him and he is high on affect on that attitude. If he has a moderate rank on an attitude scale and has many non-scaled responses. this attitude is considered of low salience and affect to him. The non-scaled responses may give cues as to issues that are of high affect. (See Chapter 9 below.) 32 Notwithstanding. a functional equivalence among the three components of attitude response (cognition. affect. and behavior) will be assumed. compatibly with the limited experimental findings (Rosenberg. 22.51.. 1960. chap 2: Allman and Rokeach. 1967). Attitudes will be inferred from overt behavior. A conceptual definition of attitude which focuses upon the behavioral component is most useful in operationalizing the constructs of attitude. value. and ideology. Because of its behavioral focus and because it is readily utilizable with our specific kind of data. we employ Hokeach's defini- tion (1968b): An attitude is a (l) relatively enduring (2) organization of interrelated beliefs which describe. evaluate. and advocate action with respect to an object or sit- uation. (3) with each belief having cognitive. affective. and behavioral components. (h) Each one of these beliefs is a predisposition which. when suitably activated. results in some preferential response toward the attitude object or sit- uation. or toward the maintenance or preservation of the attitude itself. (5) Since an attitude object must always be encountered within some situation about which we also have an attitude. a minimum condition for social behavior is the activation of at least two interacting attitudes. one concerning the attitude object and the other concerning the situation. (1) The ”relatively enduring“ postulate of attitudes may be examined by dividing the data into two periods and constructing attitude scales in both periods of equivalent 33 content. If judges are consistent in rank between the two periods. evidence that attitudes do not change may be gained. If the judges' ranks on comparable attitude scales do change. inquiry may be made as to the reason. The validity of the scales may be questioned or if satisfactory explanations of influences bringing about the change can be discovered. the. assumption of the "relatively enduring” postulate of atti- tudes in this situation may be weakened. Relevant literature thus far provides little indication of shifts in judges' attitudes (Schubert. 1965a. pp. 228-233). (2) Attitude theorists also agree that an attitude is not a basic. irreducible element within the personality (Shaw and Wright. 1967. p. h). More basic are beliefs (Rokeach. 1960. chap. 2). Beliefs are considered basic irreducible elements.20 Their status is ”primitive”--a1though the existence of beliefs is postulated. it must be assumed that. given the present state of technology. their observation is futile. .All human cognitions are systems of beliefs. and it is these systems which are "observable” (indirectly through infer- ences from behavior). Attitudes. attitude systems. values. auui ideologies. along with beliefs. are conceived as structurally and functionally analogous-~as isomorphic with one another (Katz. 1960: Smith. Bruner and White. 196#; 20That is. they are not composed of other more basic elements. This is not to hold that they are discrete entities. since they are not observable. 34 White. 1966). That is. several attitudes interact to form an attitude system. several attitude systems interact to form a value. and several values form an ideology. Since factor analysis. in extracting successive factors. makes a hierarchical ordering of variables possible. it is ideal for revealing such a hierarchical structure. if one exists. Moreover. McQuitty's pattern analysis and the L.A.W.S. tech- nique similarly can result in a cumulative hierarchical structure. Hence. if the above theoretical description of psychological constructs is correct. such a structure will be revealed by these methods. The several methods can be used to check each other. Furthermore. the content of the vari- ables will permit a definition of each construct to be made. Thus. whether the constructs can correctly be labeled as. for example. values and ideologies. can be determined from their constituent variables. Hence. if constructs can be identi- fied plausibly as values. their existence may be confirmed and a conclusion reached as to their position in the hier- archy of the attitude-value system. Likewise. if combina- tions of values form constructs plausibly identified as ideologies. their existence as part of the attitude-value system of the Court may be confirmed and a conclusion reached as to their composition as far as values. attitude systems and attitudes are concerned. It is to be admitted that a ”plausible identification" is comparatively weak proof because human judgement is :required. Yet few studies can avoid this weak link in their 35 evidence entirely. (3) The psychological constructs (attitudes. attitude systems. values and ideologies) are composed of beliefs or interrelated belief systems. An attitude is a belief sys- tem (Spaeth. 1967; Hokeach. 1968b. pp. 4-5). Thus these constructs. like beliefs. ”have cognitive. affective. and behavioral components: and. being structural analogues of one another. they are all analyzable in terms of their characteristics (e.g.. degree of salience. time perspective. integration. specificity) commonly specified in the social- psychological literature (Rokeach. 1968b: Krech. et.a1.. 1962).“ (Spaeth. 1967. p. 3.) As Spaeth (1967. p. 3) says "if all four psychological phenomena are structural analogues. what does it mean to say of them that they are interrelated? Again. 35 courant theory in social psychology suggests that beliefs are func- tional to attitudes (belief systems). that attitudes are functional to values (beliefs and belief systems. including attitudes). and that values are functional to ideologies (beliefs. belief systems. attitudes. attitude systems. values. .and value systems). By function. we follow Katz (1960). Smith. Bruner. and White (1964). and White (1966).” (a) The responses which will be the focus of the study tare the votes of the judges in the cases they decide. Opera- ‘tionally. the focus will be on the relationship between atti- ‘tude and non-verbal behavior. (The verbal opinions 36 accompaning the judges' votes will be consulted for purposes of classifying the cases into attitude scales. however.) (5) Rokeach's conception of attitude involves two interacting foci: attitude toward object (A0) and attitude toward situation (AS). Behavior is then a function of A0 and AS: B = f (A0 x AS). This model has been used in a study of Warren-Court attitudes (Spaeth and Parker. 1969). That study adds evidence that attitudes are indeed composed of at least two interacting foci. but it may be questioned whether it is necessary to constrain ourselves in calling the foci “attitude toward object” and "attitude toward situation." In concrete situations of ordinary life experi- ences. such concepts may be useful. But in the case of abstract notions such as constitutional and legal provisions. it is not always easy to distinguish between objects and situations. It is possible in White Court scales to define civil liberties as the situation and the various groups seeking civil liberty claims as objects (criminals. property claims. Indians. aliens). Likewise it is possible to define many scales as involving the regulation of business (the «object is business) and the constitutional and legal provi- sions as situations (Commerce Clause. Contract Clause. Due JProcess Clause. state taxation). Yet the judicial power iscale seems composed of component scales which include the specific issues of federal judicial power over state courts and laws (scale 65). judicial power over executive actions (61). the judicial power of lower federal courts (#0). and 37 Supreme Court power in favor of liberal outcomes (41) and in favor of conservative outcomes (42). Is the exertion of judicial power an object or situation? Are state courts and laws. executive actions. lower federal courts. and cases favoring liberal outcomes objects or situations? It seems just as logical to call all these components legal situa- tions as to arbitrarily define some as situations and some as objects. Similarly state regulation of business under the Commerce Clause (13) seems composed of two subcomponents. one involving taxation (34) and one involving regulation other than taxation. Which is object. the Commerce Clause or taxation and regulation? In considering these abstract issues the object-situation distinction seems arbitrary and unnecessary. It would be sufficient to say that attitudes seem composed of two interrelated foci: and not specify the nature of the foci. The division of the cases into specific categories and the scaling of these categories have already been described. Attitude is defined operationally as a set of cumulatively scaleable items as finely drawn as the parameters of the data permit. An attitude system is a set of interrelated attitudes. values are defined by Spaeth (1967. p. 6) as a set of inter- related attitudes and a value is deemed equivalent to an 38 .attitUde system.21 This definition seems inconsistent with that of Hokeach as noted. It neglects the transcendental nature of values. (Rokeach. 1968c. p. 16.) Furthermore. whereas our findings in Chapter 6 below (Figure 19) suggest that some attitude systems involve only one value. other attitude systems seem to involve interactions among values. However. Spaeth's (1967. pp. 6-7) findings are ac- cepted that ”values. then are seen as dependent upon atti- tudes which. in turn. depend upon beliefs. values are more cognitively complex than attitudes. as attitudes are with respect to beliefs. Because a value is a combination of several attitudes. it is not necessarily tied to any spe- cific attitude object or situation. For this reason we hypothesize that values are less subject to change than attitudes.” Spaeth also defines an ideology as a set of inter- related values. As the most cognitively complex of the con- cepts. it is hypothesized as being the most stable and least susceptible to change. 21Spaeth's use of the term ”attitude system" seems to vary somewhat (1967. p. 6). He seems to call attitudes as measured by scales equivalent to attitude systems and later equates attitude systems with values. Since 1967. he seems to have settled on a definition that they are cumulative scales with at least two subscales as components (Spaeth. 1969. p. 7). Hence. his attitude systems are composed of only a few scales. However. as I have used the term. they are composed of from four to thirteen attitudes and are identified by factor analysis. In Figure 19 below his defi- nition would probably include only scales 11. 13. 17. 31. and 23 as attitude systems. 39 This paper will use the term attitude system to describe the factors identified by our multivariate analysis which are composed of interrelated attitudes.22 However. judgement on the other concepts will be withheld until the explanatory value of such concepts are ascertained. values could be conceived as entities toward which judges may be ranked as more or less favorable. However. they have been previously studied from the viewpoint of an individual's value system. that is his rank ordering of preferences for values (Rokeach. 1968c). These are not strictly analogous concepts. Furthermore. the individual compensatory model (Torgerson. 1958. pp. 352-359: Schubert. 1965a. p. 28) sugb gests how values may affect attitudes in a fashion which fits the Hokeach rather than the Spaeth model. values will be examined in ”an analysis of the overall pattern of order relations from all pairs of points for all distinct sets" (Spaeth. 1967. p. 6). hence. from factor scores and average ranks. as well as from the analysis of each judge's average rank and consistency within a set (such sets being deter- mined primarily by factor analysis). The use of the term ideology might be confusing as a psychological concept and may be objected to as having con- flicting uses in political science literature. It may be conceived as an external or unifying element in influencing 22Campbell (1964. p. 110) calls similar entities ”at t i tude structures . " ~ 40 attitudes and values. for example. Its place in explaining them will be examined also. Attitudes will be inferred from the behavior of judges 1 in voting on cases. rather than primarily from verbal expla- nations of their behavior. Such behavior has been more a accurate than their verbal rationale according to several studies (Schubert. 1965c; Spaeth. 1964). Our indicators of the judges' relevant attitudes in their decision making will be Guttman scales of their votes on cases. The Guttman scales are postulated to be indica- tors of a “unidimensional” attribute in the data categorized. This attribute is defined as the attitude of the justices toward the dominant issue within the category. The cases may be conceptualized as items on a questionaire which define the favorableness of the justice toward the issue.23 (Spaeth. 1967. p. 10). The dimension described is one on which the respondents hold a consistent rank. The first case will have only one justice opposing the issue. The remaining cases will be ranked accordingly in order of increasing votes against the issue. The extreme cases involving the issue. if endorsed by only one justice,will 23A psychologist may construct a battery of questions 'to measure attitudes toward taxes. for example. each question “being more extreme than the preceeding. He may ask. do you «.733; a X a ... :3 h h n «.4: I a...< «.AJ OHIVHH A,u~..d.:4.U\ :I Hm... .1- llllll++ + + .9 .9 .9 + I n e - m\m u\m m\m :\m :\m :\m W\m N\q w\r H\q H\m H\m H\m Vague statute Double jeopardy 13th Amendment Change of venue Change of venue Hearsay evidence Hearsay evidence Jury trial Wife's rights Double jeopardy, jury Venue I I I I and Hom$flO~mmmH Jury trial, arrest Double jeopardy Figure 1.--Soale of Criminal Due Process Cases: opeuw venues. was Hu 9 oosunomuoa Homeosmo. ammo >eemsaux H was HH wow wow no ammo Huwmenw : an m —4 Hts ‘4‘.1 ~ F! in five 3.4: 5' H. Nd Quad \I O‘." H I- ~ h In ‘. N. A 2 v .‘D uou grin .qsurese oioA a St - ‘£QJ°QII 89° 94 do 3J9d~ tgedrap °sxaqmnu e 'aSUOdSOJ parses-non s;- o ‘uo IFAIO JOJ anon e s; + H 10; II pus I xtpueddv 9999 60 anssI Habeas corpus: Contempt Search & seizure: corporation Contempt: biased judge Search & seizure Trial procedure Self-incriminaticn Trial procedure Self-incrimination l ITrial defect: jury charge I I 940A 8/I 8/1 4/2 S/E 9/9 9/8 {/9 2/6 I/8 flaunts ZU’. at a. '0'” f. .o“7 " .-‘—v J-I- A. .. .5" V l' _. M- _ - . . . ,r . 4 . «o- W , .‘ . . v . . ‘3 — ~ — 1 ‘. ._ ‘ V: 7 5 ... '. ' 9" n‘v _' .4'. .. ‘- u . ,‘-v‘ - ‘ -’_ i. - ._. . ... el'. 7 -f u . V _ . “ ‘ ‘ ' . . a — v - v ‘ - fl .. 3" I ,4 a 9—. . V . - v... I f a» .— ‘32: . Aqul' I "l ‘ ‘ 45-5: ’:U- '3‘ A... 'I->Ja/‘_ a ;".1-V‘:'. o a to 79 In bankruptcy and debt proceedings. this category of t“fits is scaled as to the extent to which the Judges favor the creditors as against the debtors or bankrupt persons. The cases include signing over property to relatives. the examption from creditors' claims of life insurance benefits. homesteads or Indian land. the barring of usurious interest rates. preventing exorbitant lawyer's fees from establish- Ing valid claims on an estate. the liability of negligent bank d 1rectcrs for failure to make good on a bank shortage. and 8‘11 ts for breach of contract as part of a bankruptcy Stockholders' rights and liabilities are also Issues raised were: are they liable for compa- Seal ed here. RY debts (usually under state laws) or can they recover for Mary due to looting of company property by other companies taking over the management of their property? In these cases the stockholders are the indebted or bankrupt parties. Hence . debtors. land owners with property being foreclosed. and small stockholders make up most of the persons involved in this scale. In the first period the state bankrupt scale cases all involve state debtor laws and the federal scale cases 311 involve federal laws. In both periods the state 80319 (NO- "9) includes all cases in“ which a pro-liability (anti-debtor) 7 vote is also a pro-state vote and the federal 8‘3819 (37°- 52) includes all cases where a pro-liability vote 13 also in favor of federal Jurisdiction- A. , , W130, 54‘) formed a poor quasiscale for the 30° ‘j‘mded: ”ago: the fact that the Danie-gate: cases were I ’1'.‘ r . 2 4a A"?! 'i 4; .‘l. .' -~ «fate. ' a. sop. 80 “early out of fit with the others. resulting in a C.R. of ‘852. This was refined by dropping the Bankrupth cases. The result was the General Liability scale (No. 25) with a C-R. of .929. It includes suits against railroads for damages and discrimination and suits against insurance. com- panics. General Liability for the first period is identical to 91gbilitz (No. 54) defined above. scales of all railroad cases were made with cases aligned on an anti-railroad dimension. They gave a C.R. of .895 for the first period and .866 for the second. These were not used in the analysis but may reinforce the possi- bility that as an attitude obJect railroad companies were losing salience as the Pragressive era wore on and federal legislation presumably relieved the problem. Two scales were constructed to measure attitudes toward the federal government. Federal Fiscal Power (No. 19) includes all federal tax cases. These involve income. inheritance. corporate. excise. and war profit taxes as well as the tariff. Federal Fiscal Claims (No. 20) involves suits against the federal government! to recover an alleged debt or payment for services. Most cases involved businesses. Usually a contractor for the government sought payment or extra pay- ment for work not included in the original estimate. Many cases 1nVolved railroads seeking more adequate compensation 1' 0 f0 ”rung the mail. Several involve an Indian suit for 81 p1‘ouiised funds or land owners suing for damages in a flood °°htrol proJeet. In several cases the government is suing an individual for unauthorized use or appropriation of government funds or prOperty. These include taking minerals from public lands and government employees using public funds. There is one taxpayer's suit to enJoin a government action in appointing a Democrat to an office. These scales 9X01 ude Land Claim cases (16). A scale was constructed to measure the federalism or states ’ I'iéis'hts dimension. It was called Federal-State Canflj, cti Jurisdiction (No. 31). This issue has long been avitaj- issue of our political system and of our national 3“amalgam! in particular (Kelly and Harbison. 1963; Swisher. 19514,, Mason and Beaney. 1959). It has been a central issue dividing our political parties from pro-Constitutional days to the Bryan era or later (Crawly. 1963: Peterson. 1960). Although books have been written purporting to describe such a dimension on the Supreme Court. attempts to scale it have often been unsuccessful (Sprague. 1968; Schubert. 1965a). It has been called merely a second or third order factor motivating Slzpreme Court decision making (Spaeth. 1962. 19611,. and 1966. p. 26). If it is a lower order factor. we would expect to set a low C.R. and might get that only by sealing cases involving many other issues. most of which are more salient ‘50 the Justices than federalism. This expectation was borne out: completely. 82 This scale was constructed by using all cases in which a confliot in Jurisdiction between federal and state power existed. Usually both federal and state legislation could conceivably cover the case involved. Commerce cases were Included if it so not this criteria. Excluded were cases in 17h 1 oh the federal aspect was a theoretical constitutional 13.9118 (e.g. does the Fourteenth Amendment invalidate certain Sta t6 Jaws?). Thus the universe of cases was smaller than that of a comparable study of federalism which defined 1+5 such cases in the first period and 65 in the second (Sprague. 1968, p , 62). This study. by contrast. found 37 in the first Well 0d and 39 in the second. The C.R.‘s for these scales - 866 for the first period and .8914 for the second. sug- Were Resting: multidimensionality in the voting data. A division of the cases into Federal-State Conflicts: Economic Powers (No. 32) and Egg-W Powers (1%. 33) raised the C.R.‘s to .910 and .900 for the first period and .963 and .898 for the second. Again the Economic Power Scales were more homogeneous than the residual Non-Economic Power scales. The basis for division of the Federal-State scale was the same basically as for Federal Regulations discussed above. In the Economic Powers scale a ”liberal” vote (anti-business or pro-worker) is the same direction as a pro-state Juris- diction vote. This is the reverse of the deeral Re lations W 80318 (No. 21) where pro-liberal was pro-federal. The m-m: Economic scale (No. 32) includes conflict- ing railroad rate and bank interest regulations. conflicting ... ”.er 83 Jurisdiction over employer liability or workmen's compensa- t1°h cases (Scale No. 8). conflicts in Jurisdiction over federal banks. food and drug acts. questions as to whether rederal patent law or state law covers certain business Infringements. and conflicting bankruptcy laws. Federal-m anflicts: Egg-Economic (No. 33) involves cases not touching an economic liberalism dimension or where the 11 beral position is anti-state power (not more than three Cases out of 42). These involve a miscellany of cases involv- ing the treaty power. conservation cases where big business exploitation is not involved. a federal employee's driver's license , forged bills of lading. land claims. the civil rights of Negroes. Indians. voters. and women. other feder- ally based liberties. eminent domain. the rights of aliens. fraudulent contracts. Jurisdiction over Indian reservations. and congressional restraints on a state newly admitted to the union. The largest proportion of the cases involves prohi- bition. One—third of the second period scale cases are in this area, Over #0 per cent of the first period scale also involves the Judicial power of federal courts over state c ourts and laws . Both the Economic and Non-Economic scales for the second period include Federal Regulation cases as one-fifth of their case content. The first period scales contain a much lower proportion. 84 above cases revealed that they involve d state laws. However. in over four- it is the state law that is being challenged by the existence of a fed- baring state action. is not itself case. Hence. the cases where the fed- ctly tested were separated and sepa- Federalism (No. 63). f a federalism dimension is the quasi- ll.§21£fl.2£9 Credit Clause (No. 39) States' rights was defined herein as records. laws. and court decisions of es involved the liability of insurance d workmen's compensation cases. and ms. Others involved stockholder lia- orce. and a suit between states. Its ssen the reliability of this scale. eriod a scale on Private Contracts ed to measure attitudes toward the contract” concept (Kelly and Harbison. b—706; Swisher. 195”. pp. 432. 5203 6-137). including attitudes toward the ontracts in general.“ Cases involving a single scale. suggesting that they '___l makes it clear that the right to con- y a subset of the more general liberty ontracts., See Coppgge v Kansas 59 L.Ed. 85 are closely related. The first period did not seem to con- tain enough cases which involved this attitude. All cases involve the strictness of enforcement of business contracts and the interference of legislation in the right to make unrestricted contracts. Liberalism is considered anti- contract and anti-liberty of contract. Three cases involve state workmen's compensation laws and one involves a labor hours law. Two involve fraudulent contract. one an insur- ance contract. three a contract for exorbitant lawyers' fees. and several involve business contracts with the federal government. Prohibition Laws (No. 38) were scaled primarily for the second period. but this gave enough definition of ranks for the first period justices to include a scale in that period also. They involve both state and federal prohibi- tion laws. regulation of interstate commerce in liquor. con- fiscation of a brewery as well as individual liquor supplies. taxes on liquor. prohibition on Indian reservations. the Volstead Act. and the ”constitutionality" of the Prohibition amendment. The dimension tested is pro- and anti—liquor regulation. 233;; Liberties: Property (No. 3) for the second period scaled poorly (with a C.R. of .868). so it was divided into Prqpertz Righfifi Invoked Against State Law (No. 55) and Against Federal Law (No. 56). The C.R. improved to .886 and- .978. respectively. In scale 55 a pro-property vote is i;’”‘ I item .uflafiiflfl‘gwfli. 86 ;ale 56 a pro-property vote is anti- e! category includes a District of grounds that it is also a “local" law. itical issue of long standing involved 2 Governments to a civil suit in fed- The basis for this states' right was .t. The issue arose from the practice corporations promising'to build a unty or city if it would issue bonds to 1p its financing. The promise of rail- main unfulfilled and the corporation . but the bondholders would attempt to alue. Most counties would repudiate the ederal courts. State courts would take in. 1953; last v Dallas Count . 59 L.Ed. olve county bonds. one involves a dam- ,- ate banking commission. A11 involve r-’4 in.- 4 4 ‘1‘ z; “ a\. , I r against state agencies (including as or bondholders for financial remuner- of this issue decreases greatly as there "In. W .. § the second period. 6#L. "(~- - d the Right 3;. a M giant .1_:_: c1111 the first period (No. 62) in a large I I'_ .'- Q “ ‘1" ' ‘22....) — . of .825. This scale involves suits insurance companies. including workers' orkmen's compensation cases). One case 87 in criminal civil liberties was used to give Harlan a rank on this scale. This scale measures attitudes towards how much instruction in the law a Jury should be given. from a Jury instructed to find no liability or a Judge overruling the Jury damage award to the opposite extreme of an unin- structed Jury decision for damages for the plaintiff against a corporation. Attitudes toward the Judicial power of courts were sealed for both periods. Votes for Judicial power included a higher court correcting a lower court. a federal court overruling a state court. a court correcting the act of an executive officer of government. a court ”amending" a legis- lative act. and court inJunctions against individuals. usually union members. The criteria for inclusion in this category was some verbal Judicial statement asserting that the case involved the question of the propriety of exerting appellate review by the courts or active Judicial interven- tion by lower courts. especially in the dissent.5 This issue is a maJor preoccupation of Court historians of the 1896-1937 period (Paul. 1960; Mason and Beaney. 1959. chaps. 8 and 9: Lewis. 1931. chap. 2: Corwin. 1934). while present Judicial studies have sought to measure such an attitude (Spaeth. 1962. 1964; Schubert. 1965a). Furthermore. in riearly every presidential election from 1892 to 192a 5A maJority statement on which the dissenters did not -take issue was not considered to be the cause of the differ- ence in voting behavior. 88 criticisms appeared in party platforms to the effect that the Judiciary had overstepped its legitimate bounds:6 the Populists in 1892. Democrats from 1896 to 1912. and the Progressives in 1912. 1916. and l92h. (See Faulkner. 1931. 1959: Link and Catton. 1967; Mowry. 1958.) The intensity of the anti-court attack reached a peak during 1908-1912 at the start of this study (Kelly and Harbison. 1963. pp. 628-634). Hence. the salience of such an attitude as Judicial activism to this period seems clear. The gross Judicial Power categories scaled so poorly that they were not used. The first period. h6-case scale had a C.R. of .838. The second period. 21-case scale was little better with a C.R. of .8u8. This suggests that atti- tudes toward the use of Judicial power were obscured by more salient issues. Suggested subdivisions of Judicial power 'were: federal courts exerting Judicial Egggr‘gzgg‘gggtg Eggs egg Courts (No. 65). Judicial 231:9; 915; the Executive Branch ‘gg_Government (No. 61). the Judicial Pgwer 2; Lower Federal Courts (No. 40). and Judicial power over the legislature. The scale measuring Federal Judicial‘gggggigzgg‘thg States (No. 65) was only present in the first period. It vuas further refined by including only cases involving the Power g Federal Courts g_v_e_1; State Courts (No. 61+). Here. rtropping direct challenges of state activities made little 6The possible exception was 1920. near the close of tryis study of the Court. 89 real difference. One-fourth of the cases in the former scale (No. 65) were also in Federal State: Non-Economic Powers and one-tenth of them were in Federal State: Economic Powers. It also included cases found both in Liability 2; §£g£g Government (80 per cent of that scale) and Judicial Power gggg_£hg Executive Branch (#4 per cent of that scale). It also included a few cases from each of the following scales: Civil Liberties: Property. Criminal 235 Process. §£a£g_§ggg- lation of Business gndgg Que Process. Stats Taxation. Civil Rights. Land Claims. State Regulation 25 Business under Commerce. and Jury Trial. Judicial Power over Executives (No. 61) included the power of President Taft to withdraw public land for purposes of conservation. presidential appointive powers. other federal executive discretion cases. some I.C.C. powers. and the powers of state commissions and county boards. This scale appeared only in the first period. 222 Judicial nggg‘ g 5233; Federal Courts (40) scaled well for both periods. It involved principally the issuance of federal injunctions and punishment for contempt. but also included the appointment of auditors for the investigation of civil cases. power to control the actions of state or federal executives. boards or commissions (as in rate cases). sued the freedom of lower federal courts from Supreme Court supervision. In this period appellate Jurisdiction of the Shipreme Court over lower federal courts was apparently not 9O conceded as routinely as at present. Judicial power over legislatures did not form a scale. Challenges to legislative acts were scaled with State Courts in number 65. Cases involving Congressional power were too few to scale. General Judicial Power (No. 57) was a scale which included the few cases in which discretionary Judicial action seemed to be the central focus of the case. Scales measuring an attitude toward the exercise of power by the Supreme Court were only obtained when such cases were divided into one category where Judicial power was exerted in favor of a ”liberal” outcome and a second cate- gory where Judicial power was exerted in favor of a ”con- servative” outcome. This reinforces a suspicion among some students of Judicial behavior that Judicial restraint. a ‘nebulous concept at best. is put into practice when the issue involved is not dear to a Judge's values. but seldom zipplied when the issue presented touches a cherished value. (See Spaeth. 196#. 1966. pp. 22-27: Schubert. 1965b. pp. 153- 157: Murphy and Pritchett. 1961. pp. 627-629. 653-660). lience. when the Judges pass on the Judicial power of other <3ourts. a scalable attitude may result: however. when the Judges’ decisions are limited only by their own self- :restraint. their value system may be the determinating factor 138 to when Judicial power is to be exerted and when it is l10t. In any case. this attitude is clearly secondary to 91 the liberal-conservative dimension. However. Holmes. Brandeis. and Van Devanter do have a fairly consistent attitude toward the Judicial Power concept. Nevertheless. even Holmes is guilty of foregoing restraint when his cherished values are challenged. as will be seen below. The basis for division of Judicial Power into liberal and conservative is somewhat different from the definition of division of the Federal Regulation and Federal-State cases. Here all cases are defined as either liberal or con- servative in outcome. This includes ”non-economic" cases as well. Economic liberalism is defined as previously. ”Non- economic liberalism” favors the criminal defendant. the dis- advantaged group such as the Indian. the Negro. or the alien. the small prOperty owner over government or the large prop- erty owner. the doctor. the poorest or disadvantaged person in land claims. the public domain or small property owner in conservation cases. the small businessman over the corpora- tion. and the government investigator over the business investigated. The Judicial power of the Supreme Court was petitioned to intervene in favor of conservative outcomes ‘twice as often as in liberal outcomes in cases where the ‘propriety of the Judicial action was questioned by part of ‘the Supreme Court. This suggests that conservative forces 'were more successful in gaining Judicial intervention than iliberal forces. It might be explained by lack of federal yyower to review state cases where a federal property right vnas asserted and upheld by state courts. But this situation 92 was remedied by legislation in 19lh (see footnote) and this type of case was not noticeably more frequent in the second period. Supreme Court Power in favor of Liberal Outcomes7 (No. #1) included cases where the Court was asked to reverse contempt convictions in criminal or First Amendment cases or overturn inJunctions against rate commissions. Also the Court affirmed a Judge-directed verdict in a prosecution of a businessman. upheld inJunctions against railroads forbid- ding air pollution or ordering service for a community. upheld federal injunctions against states for violating federal rights as civil rights for Negroes and aliens. affirmed a lower court refusal to force a county to honor its bonds. and was asked to support Supreme Court Jurisdiction over a lower court case where technical requirements had not been met. Judicial Power 22; Conservative Outcomes (No. 42) is similar except that Supreme Court power would uphold lower court Judicial power over state courts and executive officers. and injunctions in effecting conservative goals as prevention of rate regulation or enforcement of a state anti-business ilaw; In the first period 61 per cent of the cases involve 7In the area of Supreme Court appellate Jurisdiction cyver state court decisions. this issue was a subJect of (zongressional legislation in 191a. Previously a state court i‘inding of a violation of a federal right (e.g. the Four- 'teenth Amendment)upholding the property right was n3; sub- Ject to federal review. 93 iberal) state actions. The second If these. The second period involves nst railroad regulation (30 per cent . of cases in several scales was noted d Judicial power variables. so exclu- : a lower federal court power scale e and state-involved cases. and liberal es omitting all executive and lower The resulting scales showed little ittle difference in subsequence factor icates in this period between Property Aliens (No. 6). Indians (No. 5). Labor (No. 16) and Congervation (No. 14) were 'Rights. Also duplicates between the and 14) were eliminated. These made rank shifts. but were factor analyzed t-in bias. The problem of duplicates second period: however. a universe of ds was factor analyzed after as careful plicates among scales as was practical. he two sets of scales (Table 3 and uch insight into the change in focus f the Court studied. There were more in the first period. The second period 94 had only two-thirds as many. This issue seems to wane in salience.8 First period cases deal more with federal Judi- cial control over the states and over executive officers. The second period is more concerned with control over lower 1 federal Judges and the Progressive goal of strong executive . action is less often challenged. As the Progressive movement gained momentum we see that the states are left alone in their own liberal activities more often. The liability of states to suit also waned as an issue when the evils that caused the importance of this issue faded out (Westin. 1953). Land claims also become less impor- tant as the available unoccupied land and the Indian land was used up. Indian cases also decrease. Discrimination by railroads is less important as an issue in the second period while subtler methods of monopoly come into prominence. I.C.C. cases are also fewer. but rate cases multiply. Thus the I.C.C. is less often challenged. and governmental con- trol over rates becomes more strict. Insurance company cases became less frequent as the exposures of their abuses faded from public consciousness. Epgzg‘glyyl Rights (15) decrease as the less interested Democrats take over the federal government and Justice department. Labor cases become more prominent as the political strength of labor grows and becomes allied with the new Democratic maJority. 8Much discussion of the necessity for recall of Judi- cial decisions by Theodore Roosevelt and other Progressives took place in 1911-1912. In 1916 this issue was largely dormant . Mowry. 19 58. —i 95 its gains in labor legislation in the second period are a matter of record (Link and Catton. 1967). A deluge of First Amendment cases fall on the Court in the second period ris- ing out of wartime repression of freedom of eXpression. Finally. the growing strength of the Prohibition movement in the 1916-1920 period gives enough cases for a scale in this period. In terms of clear cut attitudes as inferred from high reproduceability (See Table 3), the first period gives better scales in Civil giberties: Property, in Corruption $2.§2§l' Eggs. and in the federal economic regulation scales such as Discrimination. Antitrust. and Federal Bate Regulation. The second period scales are uniformly better in all the state regulation and taxation scales as well as £322; and liabil- ity. In this period the reproduceability is greatly superior overall to that of the first period. This suggests that the most salient issues in the first period were property rights. business corruption. and railroad discrimination. since the former was a concern of the fading laissez-faire philosophy and the latter two were early Progressivist concerns which faded as exposure and regulation relieved the problem. Fed- eral economic regulation was the Taft-Roosevelt solution to the problems of corporative bigness and industrial evils and was more salient to the early period covering mostly issues under the Taft administration. The increasing sharpness and greater consistency of the second period scales could be a result of the increasing polarization of issues between 96 economic liberals and conservatives as class politics became more important and Progressivism became stronger and more pervasive. and due to the fact that the less salient legal- istic issues lost their importance to the political and Judicial system. As can be seen. the type of scales that meet our cri- teria and hence are workable constructs for measuring atti- tudes on the Court give us valuable information by them- selves. Attempts were made in this chapter to explain Supreme Court decision making on both legalistic grounds and early twentieth century political issues. Yet the greatest success has been with scales involving political issues external to the Court. and less satisfactory results have been obtained with traditional legalistic issues. (See Tables 1. 2. and 3.) The traditional legalistic constitu- tional law concepts which gave us some success involved the Due Process Clause. the Commerce Clause. the Contract Clause. federalism. judicial power. and the Full Faith and Credit Clause. The first two scaled adequately only after delimit- ing and seperately categorizing the cases into taxation and regulation of business. The third. Contracts. scaled only when we limited it to state and local franchises. Federal- ism and Judicial power scaled poorly or inadequately until they were divided into specific issues mainly dealing with ideological conflicts and political issues. Full Faith and Credit formed only an inconclusive and tiny quasiscale. Other legal concepts involved general liability which mas —_ 97 greatly improved upon division into the specific issues involved. One of these specific issues was Bankruptcy and QEEEE (No. 28) which involved a political issue (debt- repudiation) as well as a legal category. I Hence. based on our scaling technique alone. a conclu- j sion seems Justified that decision making on the White Court was dominated primarily by external political issues. The cases involved those issues and the Court reacted to them in terms of those issues. Traditional legalistic considera- tions were only secondary. This is only a short step from a conclusion that the Court was not "insulated“ from the political arena but represented an "open system." a system open to vital issues and concepts of the greater political entity. This possibility will be extensively investigated below. CHAPTER 3 STORS OF THE COURT. 1910-1915 the White Court covers cases decided :urrences from October 1910 to June 1915. istices: Justices White. Holmes. Day. Devanter. and Lamar for the full period. 1e first year. being replaced by Pitney we years. and Justice Lurton for the ing replaced by McReynolds for the last ids and Harlan are usually found at the the Court on most issues. the relative erning them does not unduly weaken the . This period includes the Court under ion as well as the handling of cases P that administration. The great maJor- ; the Court before the October 1915 term a 1913 and most of the cases of the 1915 ad statutes passed under the previous ations. Hence. although the last two- 1 were under Wilson's presidency the th cases arising under laws of Republican consorship. 98 99 Thus this study also includes primarily periods under the earlier Progressive movement which had not yet split over issues of trusts and special interest legislation and which even under Wilson was more conservative than it became in the 1916-1920 period (Kelly and Harbison. 1963. pp. 543-569: Swisher. 195a, pp. 501-6623 Link. 1954). Factor analyses were run of the correlations between the Guttman attitude scales described in the last chapter. These scales will be referred to as ”attitudinal variables." One vital question of factor analysis is: how many factors or dimensions are present? Measures of the dimensionality of the data of the first period were taken of the 50-variable solution. The Kruskal N.D.S.C.A.L. technique showed a much greater reduc- tion of stress at six dimensions than at seven. (At six dimensions. stress was 5.5 per cent. See Kruskal. l96ha. l96ub.) The number of eigenvalues exceeding unity totaled ten. so it may be concluded that the dimensionality of the data is ten or less. (See Kaiser. 1959.) A bj-variable solution in which all scale variables were purged of dupli- cates. as much as practical. indicated a maximum of nine dimensions. The fifty-variable. six-dimensional solution accounted for 66 per cent of the total variance of the data as did the #B-variable solution in six factors. The fifty- variable. four-dimensional solution accounted for 56 per cent of the variance as did a four-factor 26-variab1e lOO solution. The SO-variable solution took eight factors to explain 75 per cent of the variance. the #3-variable took nine factors. Decreasing the number of variables by combin- ing scales does not reduce the dimensionality. This is con- trary to normal expectations and is strong evidence that at least six dimensions or factors are required to explain the attitude dimensionality of this Court. The Keil-Wrigley criterion is simply a practice of stopping the factoring after h number of variables have their highest loading on the smallest factor. a rule of thumb method. Charles Wrigley recommends g = 3. For the #3 "exclusive” variable solution. this method gave seven factors on both varimax and quartimax. Since quartimax tends to a general factor (Harman. 1967. p. 30“). a conclusion of seven factors in the data is convincing. The principal factors are given in Table h along with data descriptive of the factors. They are (going from the 'most well-defined to the least): (1) Liberal Nationalism.1 (2) State Progressivism. (3) Federalism. (h) Libertarianism.' (S) Commerce Powers. (6) Judicial Restraint. and (7) General ‘Welfare. A weak but frequently reoccurring eighth factor rnight be named anti-government or Laissez-fairism. The curiterion of psychological meaningfulness accepts as the factor total the number explainable in meaningful and 1A term borrowed from Kelly and Harbison. 1963. p. 22. Ill-lg. E Ellwmyndr’g Am. . r . . Po . 101 Table 4.--Variable Content of Attitudinal Factors for 1210-1212 Period Progressivism Factor Liberal Nationalism Facto State Pro ressivism Factor 3. 5L: Indians 28. Banfirfiptcy Ia. Due Process 6. CL: Aliens 29. Patents 11. State Tax 9. WCompNonFS 30. Antitrust 12. Contract 15. Civil Rte. #3. Business SI 20. Fed Reg: Non-Economic 16. Land Claim 45. Fed Rate 35. Commerce: No Tax 22. I.C.C. #6. State Rate 36. Tax: Due Process 23. Rate Regn Q7. Fed Regn #9. State Bank 2h. Discrimin #8. Lia R.R. F.S. 38. Prohibition 25. Gen Liabil 50. Work Comp 26. Lia Insur 51. Econ Regn 27. Liabil R.R. 6?. Fed Bank Federalism Factor Federalism Factor Commerce Powers Factor 3. CL: Property 33. Fed: NonEcon 3. W. Comp 7.3. 5. CL: Indians an. Corrupt: Bus 13. Commerce 1n. Conservation 49. State Bank 20. Fed Reg: No Econ 16. Land Claim 59. Liab State 34. Commerce: St Tax 31. Federalism 63. Anti-Federal 35. Commerce: No Tax 32. Fed: Economic 42. JP Conserv 37. Corrupt: Govt 29. Patents 65. JP State Ct 38. Prohibition 39. F.F. & C. 44. Corrupt: Business 1?. Corruption 60. Eminent Domain General Libertarianism Factor Libertarianism Factor Judicial Restraint Factor 1. First Amend . Corruption . Lower Fed C 2. Civil Liber 18. Fiscal Claim 41. JP Liberal a. Criminal 19. Fiscal Power #2. JP Conservative 7. Labor 37. Corrupt: Govt 59. Liability State 16. Land Claim 38. Prohibition 61. JP Executive 62. Jury 6“. JP State Courts 65. JP St Cts & Laws Laissez-faire Factor General Welfare Factor 3. CL: Property 38. Prohibition 3. CL: Property 6. CL: Aliens #3. Business SI 14. Conservation 18. Fiscal Claim 59. Liability St 16. Land Claims 20. Fed Reg: No Econ 60. Eminent Dom 18. Fiscal Claims 17. Corrupt: Govt 19. Fiscal Powers 20. Fed Reg: No Econ 29. Patents 3?. Corruption: Govt 102 defensible terms. This also indicates at least a six-factor solution. The variable content of these factors is defined in Table a. That table includes the most usual content of vari- ables which correlate with the factor. It was derived from nine separate analyses which utilized five methods. Most of the orthogonal factor analyses used the three rotational methods. quartimax. varimax. and non-rotated principal axes. Many of the factor analyses were run from the two-dimensional solution up to the nine-dimensional solution. Hence. this table represents over eighty different configurations of the variables. Table 5 shows how the variables loaded on the various factors on several factor analyses. Table 6 shows how they associated with the factors according to other techniques. As one would expect the factors did not retain the same ‘variable content on every solution. Naturally factors six to eight did not appear on any of the early solutions. that is less than four dimensions. However. some did appear as clusters in graphs of the two-dimensional solutions. Since ‘the first few factors were so powerful. the smaller factors cnzcasionally shifted in content or were distorted almost intrecognizably. Nevertheless. analyses of subsets of vari- zibles all showed evidence of stability when comparing the (Inertimax. varimax. and principal axes solutions. One pos- sitile exception was the Laissez-faire factor. Also the v.‘ ‘icé..'\oo‘. o . : ‘ 5916’... h . ‘U‘ a. gF‘q sis Sol ti as 103 ndings of variables Across various '1' “lbw WNW... L:b\4...N.O)». mam... mum W7m ”Sm mum MS“ a.“ e.“ as» 07 5 wan ssn nan PPPPP NNNNN NSNNN FPPPP FPPPP NFNNN NSNNN NFNNN JNNN NNN PPP J FANNNNN P P N N P PC NN NC FD. FP NC NN NS NNNNNNNN NNNNNNNN PPPPPPPP PPPP NNNN NNNS PPPP PFPP NNNN NFNN NNNN P PPP SSNN NNN NNN PP? PP NN SN PP PP PP. PCP-FF SSSFS SSSFS PPPGP PPPCP S SPF S 3N3 8 SAS JCNNN SC GN LP PP PPPP PSG CCPCCCC FSPSSLF CCSCCCJ CCCCCLL CCCCCPC C F CC F CCCN A ALSS CCCCCJC CCSSCCC CCCCCCC P P SA LMFLL LNSSS JJFJJ “unpvuvu JuFmLF LNLL. LJJJ LNLL LPJJP JJFJJ L LF. .J JJ a P‘. 10h Table 5 (cont'dL) §+~C§ fied? p Variables Dimensions Rotation ask: in: §¢8 §~33 w u: £>Uxo emu §s3 §m3 ss‘s Km F0 v: ecrc> w ‘d p. l) Federalism 3. CL: Property lb. Conservation 16. Land Claims 31. Federalism 32. Fed: Economic 33. Fed: Non-Econ an. Cor: Bus. 49. State Bank. 59. Liability State 63. Anti-Fed. >wnc>> 1‘9 W’U *savtnumhsmvsuam ’§”3W<31PHCUC)OCD 'fl”§1flfl'§1flfi”§filw ZE‘UHZ’DZ Zi’? Qfiqfiflflt“1 Z:!>' wt4mC)qvw thfi WETWPUCIWI N1m() goo WC4WE*WP§ FEED wt*mt*1va anew VE*W(31P§ Zhflm 'fit‘WPflCSW Libertarianism 1. First Amend. 2. Civil Lib. a. Criminal 7. Labor 1?. Corruption 18. Fiscal Claims 19. Fiscal Power 37. Cor: Govt. 38. Prohibition Progressivism P Party P bk‘bt‘ F3’fit‘flt‘ mcnr*t' t*f‘fit* t*0t*t‘ ruwrtT>3r t‘fi b mm nn>> bfi r ch wt*mcn t‘b fl mm onnoorr b mm OOOOOHB r 2m bm>>>fifi b 2:! >t*>%> fit‘ t“ See Tables 1 and 2 for full name of variable and Chapter 2 for description. The #3-variable analyses include all exclu- sive scales. The five rightmost analyses above include revised and refined variables. Where two factors are shown. the left most one has a slightly higher loading. Key to above symbols: = P = Progressivism factor N 2 Liberal Nationalism factor 8 = State Progressivism factor F = Federalism factor C = Commerce Power factor L = Libertarianism factor J = Judicial Restraint factor G = General Welfare factor A = Anti-government or Laissez-faire factor Rotations VR = varimax QT = Quartimax BQ = Biquartimin Oblique Rotation PA = Unrotated Principal Axis Note that on some factors P = N + S. Also L = L + J A “1E: broth .1. what. r . _ ... 105 Tgble 6!--Content of Factors Identified 2! Pattern égalgsis McQEitty Similarity Analysi" Libertarianism Factor 1. First Amendment 2. Civil Liberties #. Criminal Due Process 7. Labor Laws 18. Fiscal Claims 19. Fiscal Powers 38. Prohibition Liberal Nationalism Factor . Civ. 1 .: ens 9. Workmen Comp: Non FS 15. Civil Rights 20. Fed. Reg: Non-Econ. 23. Rate Regulation 2#. Discrimination 25. General Liability 2?. Liability of R.R. 28. Bankruptcy 29. Patents 30. Antitrust 36. State Tax: Due Process 39. F.F. & C. #3. Business Self-incrimin. #6. State Rate Regn. #7. Federal Regulation “8. Liability R.R. 8 Feds-Ste Judicial Restraint Factor 26. Liability insurance #0. Jud. Power Lower Fed. Cts. #1. Judicial Power: Liberal 61. Judicial Power: Executive 65. Jud. Power: State Courts State Progressivism Factor . Workmen Compen. Fed.-State 10. Due Process 11. State Tax 13. Commerce 3“. Commerce: State Tax 35. Commerce: No Tax 3?. Corruption: Government Federalism Factor 31. Federalism 32. Federal: Economic 33. Federal: Non-Economic l#. Conservation- 16. Land Claims ##. Corruption: Business #9. State Bankruptcy 63. Anti-federalism Price Hierarchical L,A.W.S.b Libertarianism Factor . Firsthmendment . Civil Liberties . Criminal Due Process . Labor Laws . Fiscal Claims . Fiscal Powers (bVC'Ni-J l 19 Federalism Factor 31. Federalism 32. Federalism: Economic 33. Federalism: Non-Economic r33. Anti-federalism Judicial Restraint Factor 1. First Amendment #0. Jud. Power Lower Fed. Cts. #2. Jud. Power: Conservative 59. Liability State 61. Judicial Power: Executive 65. Jud. Power: State Courts Commerce Powers Factor 13. Commerce 25. General Liability 28. Bankruptcy 35. Commerce: No Tax #8. Liability: R.R. Fed.-St. 106 Table 6 LCont'dL) Price Hierarchical L.A.W.S.b Pro ressivism Factor 3. Civil Liberties: Property 9. Workmen Compensation: Non Federal-State 10. Due Process 11. State Tax 12. State Contract 13. Commerce 1#. Conservation 15. Civil Rights 16. Land Claims 23. Rate Regulation 2#. Discrimination 25. General Liability 27. Liability Railroads 28. Bankruptcy 29. Patents 30. Antitrust 31. Federalism 35. Commerce: No Tax 36. Tax: Due Process #2. Judicial Power: Conservative #3. Business Self-incrimination #6. State Rate Regulation #7. Federal Regulation #8. Liability: Railroads Federal-State #9. State Bankruptcy aMcQuitty. 1965. bPrice. 1969. IO? constant recurrence of these factors adds evidence as to the ' validity of these factors across various types of analyses and sets of variables. Each factor was defined by analyzing the content of the variables which loaded highly on it. The variables loading highest were considered the best measures of the fac- tor and the ones which correlated negatively with it were considered to measure the opposite of what the factor repre- sents. Each factor is bipolar: that is. it has its negative counterpart Just as liberalism has its opposite. conserva- tism. Since factors are based on dichotomous data. yes or no votes. and on bipolar scales. this is implied. 1. Liberal Nationalism includes primarily the regula- tion of big business by the national government. It involves the extension or assertion of a national police power to meet the threat of giant corporations to society as described in Kelly and Harbison (1963. chap. 21). It was a central program of Progressivists (ibig.: chap. 2 above). fi§g&g_fla§g,figggl§£;gn,(#6) unexpectedly loads on this factor but it also includes regulation of big business. Rate regu- ‘lation seems to tap the same dimension of attitude here whether from a state or national source. The Alien scale (6) has a weak association as it involves mostly federal regula- tions designed to prevent immigration from lowering wage standards and working conditions. Federal Fegulations: Non- economic (20) had a weak association with this factor. but 108 when it was refined to remove all possible economic content. this association disappeared. ggzil Rights (15) alone seems to have no economic content unless one so considers the economic exploitation of Negroes in several of its cases. It does clearly involve an extension or assertion of federal power and was a concern of some Progressives as previously noted. 2. State Progggssivism was another factor. It is so named because it involves the more traditional use of state police powers to regulate business as well as certain other Progressivist programs not merely local in scope. Also a ranking of these Judges on their connection with Progres- sivism is found in the center of this cluster of variables. (See Figures 3 and #). It is to be noted that early Pro- gressivism was state and local in scope until these solu- tions to social and economic problems of the day proved inadequate or unconstitutional (Faulkner. 1931. 1959: jHofstadter. 1955. chaps. #. 5).' Labor (7) has a weak :association with this factor. as does number 38. Prohibition (a Progressivist palliative to social problems). .Also .Progressivist programs include Conservation (1#) and Federal Regglation: Non-economic (20). The former includes state actions in all but two cases. The latter includes immigra- ‘tion. anti-narcotics. and white slave laws. .All were con- cerns of Progressive reformers. The 51133; (6) variable has some association with this factor. The association is that Progressivism is anti-alien. This supports hypotheses that 109 Progressivism reflected a native-born bias. Both middle class and labor elements hoped to protect their status by opposing the influx of immigrants. This factor involves the more traditional methods of meeting economic problems which comports with Progressive aims. it involves native-born bias and includes most of the more zealous and moralistic Progressive reforms. Many his- torians evaluate Progressivism as a middle-class native-born movement which hoped to salvage traditional American values. such as local government. native culture. sobriety. and moral restraint (Hofstadter. l955: Lipset in Bell. 196#). This factor seems to represent this brand of Progressivism. The two above factors are closely related. On many solutions they form one factor. Upon factor analysis of the subset of the variables in this Proggessivism factor. however. they form two distinct factors. Patents (29). ngg Claims (16). and Aliens (6) are connected to both factors. That these factors are closely related is clear from most histories that fail to distinguish between the various streams of Progressivist thought. The connection may be seen in.Faulkner (1931). Hofstadter (1955). and Kelly and Harbison (1963). Progressivists fought big business because :it posed certain social. economic and political threats to themselves and to traditional values (chap. 2 above). The Roosevelt-Taft progressivism was national as was the later Wilson program (Kelly and Harbison. 1963. chaps. 22-25). —. 110 3. Federalism. or states rights. formed a factor which involved supporting state Jurisdiction whenever it was in conflict with federal Jurisdiction. Variables involving the Commerce<31ause sometimes associated with this factor. but most often split off to form a separate factor. Federalism includes largely state regulation in non-commerce areas. This Federalism factor included Federalggpgpp’gpp- flicts (31). Federalism: Economic Powers (32). Federalism: app-economic Powers (33). and éppgyFederalism (63). It also involves conflicts between state and federal courts in 'deicial Power pypp’gpgpg Courts gpg,pg!§ (65) and in the scales separately involving conservative and liberal out- comes (Nos. #1 and #2) when they were revised to include only such state versus federal court conflicts. It also opposed federal patent laws in Patents (29) and favored state sovereignty in Liability 2: State Governments pp Suits (59). Such suits were usually brought in federal courts to «enforce avowed ”federal rights.” Civil Liberties 2; Indians (5) usually involved disputes between state and federal Jurisdiction. Corruption ip_Business (##) and State Ihankruptcy ngg (#9) also largely involved cases of conflict- iruz federal-state Jurisdiction. Conservation (1#) clearly associates with this factor. In this period. all but two of true cases involved state assertion of power in favor of con- servation measures usually over federal lands granted to corporations. Land Claims (16) also weakly associates with tiris factor and involves similar situations with states 111 asserting Jurisdiction. #. Libertarianism involves the support of civil lib- erty claims. It is defined as the attitude system involving political and individual liberty. Modern concepts of civil liberties are central to this factor: however. this repre- sents a broader concept suggesting that this period involved ideas of liberty which were different from those into which they eventually evolved today. Comporting to present day concepts this factor includes Pippy Amendment Egg Political Freedom (1). General Civil Elberglgg (2). and Criminal‘gpg Process (#). Also weakly associated are Corruption (17) and Corruption pp Government (37) in which the person being. sanctioned for corrupt practices is supported as a liberty claimant against government. In a similar manner. Prohibi- tion (38) has a weak association with this factor. Land Claims (16). Labor (7). Fiscal Power (19) and Fiscal Claims (18) involve a slightly different concept of liberty. They seem to form a subcomponent of this factor which might be labeled "equalitarianism." (See chap. 2 discussion of these scales.) pgppp involves the concept of political association and action as a basic component of political liberty. It involves iiiJunctions against picketing. speaking and distributing handbills in favor of secondary boycotts. and other forms of. peaceful political economic action as well as rights to sue for wages. It includes labor-sponsored laws to free workers _r. 112 from certain types of ”economic bondage'(as the vernacular of the period would state it [Filler. 1962]). These included laws against payment of wages in ”script“ and laws against “yellow dog“ contracts. Peaceful picketing has been recog- nized as a part of free speech. and inJunctions were con- sidered by many as violations of worker's rights. Land Claims involves the traditional American right to own his own land in the spirit of the Homestead Act. Many Progressives considered labor unions and demo- cratic government as a bulwark against the political control of corporate power. Fiscal 3232; and Fiscal Claims might measure this conflict of corporate power versus democratic government. Hence. these variables may measure an attitude favoring the economic penalizing of the "malefactors of great wealth" for attempting to deprive the tax-paying public. via the government. of the corporation's Just share of economic support either by avoiding taxation or overcharging for mail service or on other contracts with government. These vari- eibles may also measure attitudes toward a more equitable dis- ‘tribution of wealth which. reformers argued. would decrease corporate threats to political liberty. 5.31.129. Regplation 9; Business u_n_d_e_r_ 3p; Fourteenth Amendment (10) and L_i_s_._b_i_l_._i_t_y 9; tatate Governmept pp Spyp (59). the equivalent of fiscal cljaims against states. also show weak associations with this factor possibly for the same reasons as above. 113 In solutions of low dimensionality. the factor of Judicial Restraint combines with this factor. This adds sup- port to the interpretation of the democratic political free- dom content of this Libertarian factor. 5. Commerce Powers formed the fifth factor. It sup- ports a broad latitude for states in regulating interstate commerce. It combines with Federalism to form one factor on three and four-dimensional solutions. But it splits off on higher dimensional solutions and subsets of the Federalism- Commerce factor support the hypothesis that these are dis- tinctly separate attitude systems. It includes all Commerce Clause variables except those in National Liberalism. In each variable a national government power versus state govern-, ment power dichotomy is present. The direction of these ‘variables is consistent. that is they are all pro-state and anti-federal. These variables include Commerce (13). gppr w: m 2‘3; (3#). Commerce: Nap-Lag (35). Workmen's (Compensation: Federal-§pgpp_Conflict (8) which involves :interstate commerce. and Eggppgl Re lation: Npppppppppyp (20) which involves laws implemented through the national «sommerce power. Federalism: Economic (32) sometimes Joins tniis factor. emphasizing the economic or commerce content of tails factor involving federal-state powers. The Full Faith auui Credit Clause variable (39) and Epinent Domain (60) may seem to involve the other federalism dimension. But they associate more highly with the Comoros Power attitude system. In the latter. half of the cases do involve railroads ! I I l lul'lf ‘25s: . b . A 11h and hence commerce powers. and are anti-federal in direction. Six of the eleven cases involve federal exertion of eminent domain in interstate commerce. .This variable is a quasi- scale of doubtful validity. however. In Egll_g§;§h_ggg_g;§gr it. the pro-state direction supports the privilege of a state to give less weight to the actions of other states. 6. Judicial Restraint involves opposition to Judicial intervention. Judicial power. or appellate review of the actions of state courts. state government. the ”political“ branches of government. commissions. executive officers. and labor unions. It includes all of the Judicial power variables loaded in an anti-Judicial direction. This factor still occurs after we rigorously eliminate duplicates between the scales. However. since all the Judicial power cases formed a compos- ite quasiscale originally we have an independent verifica- tion that such an attitude system exists. as well as evidence that factor analysis and ”cumulative scaling” are comparable techniques. as suggested by Schubert (1965a. pp. 26. 71). Difficulties arise in explaining why this anti-Judicial factor is also anti-gugx (62). One would think that an anti- Judiciary attitude would be pro-Jury. A close reading of these cases suggests that the Court opposed the Jury deci- sions only because it was contrary to accepted legal prin- ciples. Hence. this factor might involve a pro-stare decisis attitude as well as anti-Judicial review sentiment. The 115 association of the £351 variable is suspect. however. since it is a weak quasiscale. The Liabiligy pg Insurance Compppz ' variable (26) weakly loads on this factor. probably since all of its cases involve challenges to Jury decisions. This factor has some association with Federalism. A large maJority of its content involves opposition to federal Judicial power. and Property Rights (3) and Aliens (6) have a weak association with it. These variables load in an anti-federal and pro-liberty direction. The first involves mostly federal laws and half of the later variable involves federal actions. The association of this factor with libertarianism seems readily eXplainable. When the two factors are com- bined. the combination represents political and personal liberty more clearly. The anti-Judicial review component represents democratic political liberty unrestrained by non- democratic (i.e. Judicial) influences. All ”civil liberty" ‘variables load on the combined factor except 231;; Liberties 92 Indians (5) and gap; Rigpts p; Negoes (15). This is mainly an anti-federal liberty which is for white men only. This more general factor will be called General Libertar- iani sm. 7. General Welfare is a factor measuring attitudes toward the general interest of the society as opposed to :special interests or individuals. It is. admittedly. a vague term. Since the factor is so small. however. it is less 116 stable than the preceding factors. and less easy to define. It is pro-Conservation (1h). pro-Lppg‘glgépb(l6). anti- patent holder in Patents (29). anti-property in Propprty Rights (3). anti-graft in Corruption pp Government (37). and pro-federal regulations in non-economic matters (20). Each of these variables involves a special interest. usually a corporation whose interests oppose the general welfare. Con- servation of natural resources. the wider dissemination of inventions. a wider distribution of farm land. less corrup- tion. and less drunkenness. drug addiction. and prostitution may be seen to benefit society in general. at least in the eyes of the reformers of the period. Fiscal Claims (18) and Fiscal Powers (19) also seem to favor the general interest of tapping corporate wealth for the economic support for the central government instead of a broader tax base in opposi- tion to corporate interests and holders of large fortunes. This attitude system does have a documented ideological base. The slogan of ”equal rights for all. special privileges for none“ was used by the Democratic party often throughout its history. It was also one of the Progressives' aims to pre- 'vent corporate interests and individuals from using govern- .ment for private enrichment at the expense of the society or economic system (Croly. 1963: Hofstadter. 1955). 8. Laissez-faire was a weak factor which was somewhat Ixnstable. Yet evidence exists that it was present in our <1ata. It involves a consistently anti-government attitude. ZIt might validly be argued that the opposite of the 117 Progressivism factor represents an economic laissez gpppg attitude. This factor involves anti-government sentiments largely exclusive of economic conservatism content. These include an anti-government position in Eminent Domain (60). Business §pl§~incriminaticn (#3). Property Rights (3). ‘Aliens (6). Corruption 5p Government (37). Prohibition (38). Federal Regplations: upppecopcmic (20). and Fiscal Claimg (18). It can be seen that the six main factors or attitude systems may be combined into three larger factors: Progres- sivism. Federalism (including Commerce Powers). and General Libertarianism. Let us now examine evidence supporting the validity of these factors and their interpretation. Figure 3 gives the two-factor varimax configuration of idea #3 "exclusive scale” variables (with cases appearing trsually in only one of the scales). It explains 36 per cent of the total variance. The quartimax and principle axes solutions are practically identical to this one. The invari- ability of axis shift under various techniques strongly supports the psychological validity and meaningfulness of tiris configuration of variables and axes. What do the axes measure? Axis I seems to measure firstly partisan 118 " e 3 "' c 1 0 +01 +0 3 +0 5 Pro-Stake ‘ x. x x PARTY: 1 L Democnnvuc :l 3 . 6 FEDERALISM 4.x 4% x " x5? 0 L" "" t e 2 8!! i 2 m o . 3i ( k .5 71' ¢ 0 ¢ JIF fig {: Pr Federali am In) Autonomy Darwinis Libertarianism ‘) __ Figure l6.--Hierarchica1 Relationships among Factors. This hierarchy does not always develop. however. Feder- alism. a relatively weak factor. may split up between factors or may even Join Libertarianism. Libertarianism and feder- alism both have anti-government aspects. as has been mention-‘ ed. Occasionally Liberal Nationalism does not form a factor but stays in ProgressiVism. The extremely high correlations between it and State Progressivism suggests a weakening of the distinction between state and national programs in this period. Table 17 shows that most factors are highly inter- relateds (except for Laissez-faire). hence that a quite sim- plified attitude structure exists. Liberal Nationalism, State Progressivism. and General Welfareare barely dise tinguishable. Likewise Federalism correlates highly with all _ .— 51h Tables 17 and 18 Progressivism. liberalism. pro- liberty, and pro-General Welfare are positively directed. In Federalism pro-state is positive. the Darwinist position is negative. and Laissez-faire (anti-government) has a positive direction. 184 variables. Libertarianism is less highly correlated but also’ correlates with all but Darwinism. Laissez-faire weakly cor- relates with all the other factors since it is anti-government and most of the other factors are pro-government except Liber; tarianism which shows a low positive correlation with Laissez- faire. Laissez-faire correlates negatively quite highly with the Progressivism factors and General Welfare all of which involve government action. Darwinism includes largely eco- nomic conflicts between business units. and Federalism involves choices between competing government units. Hence. they show only low correlations with Laissez-faire. Correlations between oblique factor axes verify these findings as Table 18 shows. The 41-variable oblique axes show a similar pattern of correlations except that Darwinism shows quite high correlations with State Progressivism (.48) and Federalism (.37). This supports evidence that anti- Darwinism is related to Progressivism and forms a larger Autonomy factor with Federalism. The foregoing factor structure seems satisfactorily supported by the evidence and corroborated by various methods. Now let us examine the factor structure resulting from Q- analyses of interagreement correlations of the “raw” voting data and of phi correlations of the case voting. Table 19 gives the average ranks of factors from our previous R-analysis. the Judges' factor scores. and the load- ings of the Justices in our Q-analysis of phi correlations. 185 Table 18.--Correlations between Oblique Factor Axes from the F_ _50-variable. z-dimegsional solutign State Liber- Feder- Proggessivism tarianism Darwinism align Libertarianism .40 Darwinism .39 -.03 Federalism .42 ..46 .28 Liberal Factors from the analysis of the two types of correla- tions were so similar that they could be called identical. Each raw data factor had a phi factor counterpart with which it correlated between .99 and 1.00 by the product moment method. Hence. we present only the phi analysis in Table 19 and in our discussion keeping in mind that these results were exactly duplicated by using the other correlational matrix. The phi factors accounted for a larger preportion of the vari- ance. however. The five-factor solution explained 37 per cent of the variance as against 29 per cent for the other method. The above similarities in the two Qpanalyses_along with the clear-cut associations of these factors with our previous- ly described R-analysis factors reinforces our findings that the factor structure of this period is simplified and well defined. especially in consideration of equivalent compari- sons between Q-analysis and R-analysis at the end of the last chapter. 186 Table 19.--White Court Justices' Average Banks and Factor acres for Major Factors and Loadings on ngglzgig. 1216-1220 L v.— Lib. State Lib- Dar- Fed- Gen. Lais Pro- Auto Ranks o r ta win. e 9. W01 fair 1! Holmes 5 4 9 4 TL 7 34‘: 528‘ Brandeis 1 1 2 3 2 2 8 1 3 Pitney 2 3 9 1 3 3 9 3 1 White 6 7 3 8 5 5 5 6 7 McReynolds 9 9 5 7 6 7 1 9 6 Day 5 5 6 4 7 4 6 5 4 Clarke 3 2 l 2 1 1 4 2 2 VanDevanter 8 8 8 6 9 9 3 8 9 McKenna 7 6 7 5 8 8 2 7 5 Sector Lib Lib- Dar- Fede Gen. Lais Pro- Aut cores Nat Pro win ral Wel faire e onom Holmes Eta-1.31.7 -1.5 - .9 .§ 7'78;- Brandeis .41. 1.6 .9 .0 -.4 1.5 1.3 Pitney 1. 2 .7 -l. 5 1.3 .8 1.0 -2.1 .8 1.5 White - .3 - .9 .8 - .7 0 .1 1.0 - .6 - .6 McReynolds.-1.6 -1.5 - .9 -1.0 .4 -1.4 1.6 -1.6 - .6 Day 0 .1 0 .6 -1.4 .2 .1 0 - .3 Clarke 1.1 1.3 1.6 1.2 1.1 1.7 .4 1.4 1.5 vanDevanter-l.2 ~1.0 -1.0 .8 “1.5 ‘103 " .1 -100 -105 McKenna - .9 - .8 -l.0 0 -1.0 -1.0 .3 -l.0 - .5 See Table 11 for full names of factors. Phi Correlation 9W Logings £1, 23, .21 V1 V2 V V4 V Holmes . 36 -. 50 -. 31 .08 .fi .0; .0"? 8 jBrandeis .68 -.15 -.15 .42 -.15 .10 .27 .48 Pitney .10 .46 .00 .08 -. -.08 .03 -.20 ‘White c.28 -.25 .14 -.16 .40 .08 -.06 -.10 McReynolds -.65 -.12 .03 -.59 .23 .00 -.09 -.24 my -006 039 “oho .00 -017 '05!“ 007 -009 Clarke .57 .19 .11 .64 -.11 .00 .07 .04 VanDevanter -.52 .00 -.42 -.48 .09 -.43 -.17 .02 McKenna -.25 -.03 .11 -.09 .06 .03 -.47 -.07 Pl 2 V1 = Progressivism V2 = Laissez-faire V4 = Progressivism V5 = Libertarianism P2 = Darwinism P3 = V3 = Federalism P = Principal Axes Factor _ V a varimax Rotation Factor 187 Comparisons of the various rotations of the Q-analysis also gave comparable factors. Thus the same factor structure in general emerged from the quartimax. varimax. and principal axes rotations. Factor 1 on all three rotations was the Progressivism factor. Its loadings correlated with the State Progressivism factor scores at .97. with'Liberal Nationalism at .92. with Progressivism at .96. and with General Welfare at .82.6 It also correlated with the ranks of all of our Progressivism variables (Table 11) as well as the economic variables of Libertarianism (M Claims (18). £529; (7). and W E8. 49. 52]) which suggests that the broader name of equali- tarianism could be given to this factor. This factor also correlated with our ranking of the Justices according to their association with Progressivism at .77. On this factor Brandeis and Clarke rank high positively and Holmes has a lower positive loading. McReynolds and Van Devanter have high negative loadings. White and McKenna have less extreme negative loadings. These loadings show the positions of the Justices toward this ideology. The fourth varimax factor was also related to Progres- sivism but correlations with the factor scores and variables were lower. It correlated .71 with the Progressivism factor and did not correlate with any Libertarianism variables. 6These are all product moment correlations. 188 This probably shows the great strength of Progressivism on the Court in that it shows up on two factors.7 On this factor Brandeis has a high positive loading and McKenna has a high negative (conservative) loading. The second principal axes factor (P2) is clearly Darwinism. a finding supported by a .74 correlation with its factor scores. This interpretation is supported by correla- tions of the P1 factor with all the variables contained within Darwinism as shown by Table 11. This factor adds §$E§E.AEEEEP ‘Egg£,(l) and Criminal‘ggg Process (4). It is easy to see how First Amendment rights would be supported by a Darwinist who believed in a “free market place“ struggle of ideas (as Holmes had enunciated). while opposing the state in criminal cases might comport with the support of freedom from restraint implicit in Darwinism. Holmes has the highest pro-Darwinism loading by far while White is less strongly pro-Darwinist. The anti- Darwinist Judges are Pitney and Day with high positive load- ings. Factor V2. the second varimax factor. could be Darwin- ism as it shows a .82 correlation with it. but it also cor- relates somewhat with Progressivism (.63) and seems to contain both Darwinism and Progressivism variables Judging by its ‘— _A #k 7Cattell (1965) has discussed the matter of a strong influence underlying the data showing up on more than one, factor. 189 correlations with those variables. However. it correlates .77 with the Laissez-faire factor. so it probably measures Laissez-faire or perhaps both anti-government philosophies. Pitney has a high negative loading suggesting that he is pro-government. a position reinforced by his consistent extreme pro-government rank in Libertarian variables. White is highly loaded in an anti-government direction. which is also supported by his anti-government position on civil lib- erty scales. McReynolds is also anti-government but less strongly than White. The third factor (P3 and V3) is clearly Federalism as evidenced by a .75 correlation between V3 and the Federalism factor scores and high correlations between both the P3 and V3 loadings and the Table 11 Federalism variable ranks (and no other variables). Party correlates .70 with the V3 factor. Day and van Devanter have high proenational loadings. The fifth varimax factor (V5) and the second quartimax seems to be Libertarianism as Judged by their high correla- tions (.59 and .52) with that factor which was higher than with any other. V5 also correlated .54 with State Progres- sivism. It correlates with all of the Libertarian variables of Table 11 plus four State Progressivism variables (10. 12. 36. and 46) with lower correlations. however. As to be expected Holmes and Brandeis load highly in a pro-liberty direction which corroborates historical evaluations of these 190 Judges (Mason. 1946). Pitney and McReynolds have low anti- 1iberty (negative) loadings. These Qpanalyses allow us to position the Judges on the factors as do the factor scores. They also clearly affirm the existence of the Progressivism. Libertarianism. Darwinism. and Federalism factors and support findings of a Laissez-faire factor. A General Welfare factor was not found nor were sepa- rate State and National Progressivism factors. These three factors seem too closely associated (Table 17) to be sepa- rated by a small nine-variable Q-analysis. These factors can be accounted for by an interpretation of them in terms of combinations of values as could the Chap- ter 3 factors (see Table 17). Thus. Liberal Nationalism may be pro-equality and pro-national. State Progressivism may be pro-equality and pro-state. Libertarianism is pro-equality and pro-liberty. Federalism may be pro-state and pro-altruism. and General Welfare may be only pro-altruism. Laissez-faire may be anti-equality and pro-liberty while Darwinism may be anti-equality. pro-liberty. and anti-altruism. Table 17 shows high correlations of Darwinism with both Progressivism factors (equality) and General Welfare (altruism). but Laissez-faire correlates highly only with Progressivism. Both are philosophies of the wealthy classes and are anti- equality. but only Darwinism specifically says that altru- ism is hopelessly devoid of meaning. (See Howe. 1961. p. 124. Hofstadter. 1955b.) 191 In the next chapter. a comparison of the attitudinal structure of the two periods will be made and reasons for the differences will be discussed. especially the increasing simplicity of the decision making in the second period. The structure of the whole period will also be examined by factor analyses. CHAPTER 5 ATTITUDE SYSTEMS OF THE 1910-1920 WHITE COURT: CONTINUITY AND CHANGE In this chapter we will compare and summarize the find- ings covering the attitude structure of the two periods. It would appear that the attitude systems of the two periods are quite similar. It is the differences that are of interest. however. in permitting explanatiOns of Just why they occurred and what influences caused them. In comparing the two peri- ods. the results of a study of scales covering the whole period will also be reported. The variables which were common to both periods of the Court were used to Construct scales or variables covering the entire period from October 1910 to June 1921. variables which were constructed from identical criteria in both peri- ods were combined for the whole period. Some scales had no counterpart in the other time period. Nonetheless. some were used as the basis for a scale ranking all 13 Justices by utilizing the few cases'which were available in the other period. Thus 46 scales were so constructed (see Table 1 above). Some scales had poor C.R.‘s: however. the usefulness of a comparison of the whole period with the two halves was felt to Justify using these quasiscales. Some Justices may 192 193 have shifted in attitudel perhaps as a reaction to the polit- ical situation or new socioeconomic relationships on the Court. or due to aging. If so. the validity of the attitude had been extablished by the original one-period scale.and the increase in non-scaled responses due to these effects would be due not to other dimensions of attitudes but to these social and political factors. Another consideration in explaining lack of correspond- ence between the two periods is the effect of secondary influences within a scale or set of cases. Corruption in, Business (43) for example involved largely state cases in one period but federal cases in the second. Similar influ- ences may be present within a scale's case content which may make similar variables different enough to associate with different factors. To the 46-sca1e variables were added three variables constructed by ranking the Judges from biographical data on (1) political party. (2) association with Progressivism. and (3) socioeconomic status.‘ The evidence supporting these ranks is given in a later chapter. The 49-variable analysis data seemed to contain the same number of dimensions as the first period: between six and ten. The eigenvalue method indicated a maximum of ten. 1Assuming that the scales and scale ranks are valid and comparable. This question will be discussed below. 194 Ten factors were necessary to explain 75.4 per cent of the variance of the data. The Kruskal method gave the rela- tively largest reduction in stress (from 9 per cent to 6.6 per cent) at six dimensions. Seven dimensions resulted in 5.5 per cent stress (see Kruskal. 1964a. 1964b). The Keil- Wrigley criteria gave six factors for the quartimax rotation and seven factors for the varimax. The factor structure revealed by the first and second period analyses was in general supported by the whole period analysis. The only factors present in previous analyses but not present in this one were Judicial Restraint and Laissez-faire. Judicial Restraint remained within the Libertarian factor as it did in the second period. Laissez- faire was a nebulous marginal factor in both periods. so its disappearance is not surprising. Furthermore. since the Progressivism factors are largely pro-government. Laissez- faire might be expected to appear as merely the anti- Progressivist attitude and not an independent factor. This analysis using twice the number of cases and a larger set of Justices (13 for the whole period) than either single period seems to show an improvement in the stability of the factors as well as fewer anomalies within the factor content. Hence. more variables seem to fit in factors which support the interpretation given them than was true of the previous analyses. 195 It offers. in addition a new factor which was only marginally present in the second period: a party factor in which those variables that divide members of the two polit- ical parties are highly loaded. Hence. as Table 20 and Table 21 show. the eight factors present in this analysis are: (1) Liberal Nationalism. (2) State Progressivism. (3) Darwinism. (4) Libertarianism. (5) Federalism. (6) Commerce Powers. (7) General Welfare. and (8) Political Party. The various types of rotations give different hier- archical relationships among the factors. 0n the oblique two-dimensional solution. Darwinism forms one factor and the remaining factors form the other factor. probably represent- ing equalitarianism. (See Schubert. 1965a. chap 7.) On varimax. Darwinism and Liberal Nationalism make up one factor and the other factor is similar to the oblique equalitarianism. On quartimax (Figure 17). Libertarianism and a large Progressivism factor are the factors in a two- dimensional analysis (see also Figure 18). Figure 17 is generally compatible with the hierarchical relationships of those of the individual periods. Table 22 and Table 23 show correlations between the factors which also verify this hierarchy. Federalism is here more related to the Progressivism factors than in period one but less so than period two.(See Tables 9 and 17 above.) This is also true of Libertarianism. State Progressivism and Liberal 196 W #1: i State Progressivism\‘ Progressivi sm —-0 Progressivi sm Liberal Nationalism / Darwinism Federalism Federalism-General Welfare General Welfare ibertarian- / Federalism- N Libertarianism Libertarianism General Welfare Figure 17.-Hierarchioal Relationships among Factors of a Quartimax 49-variable Factor Analysis Nationalism are less closely related here than in either of the two periods. however. Darwinism is also correlated lower with these two factors.2 The difference is probably due to Judges shifting in attitudes in these attitude sys- tems between the two periods which affects the intercorrela- tions between these factors as will be shown. Basically the Table 23 relationships are midway between the first period and the second period relationships except that most of the correlations are lower because the data is more complex than either period. This is true because this data includes thirteen Justices while the individual periods contained 11 and 9 Justices. respectively. All the correla- tions between the Progressivism factors and the non- Progressivism factors are lower than would be eXpected. 2This is not due to the fact that Tables 9 and 17 are based on product moment correlations while Table 23 is based on tau correlations. .i.‘\ 1 197 Table 20.-- variable Content of Attitudinal Factors for Analysis of Scales for Whole PeriodI 1210-1220 Progressivism Factor Liberal Nationalism Factor State Progressivism Factor 9. Workmen Comp: Non-PS 8. Workmen Comp: Fed.-State 15. Civil Rights 10. Due Process 20. Fed. Reg.: Non-economic 11. State Tax 21. Fed. Reg: Economic 12. Contract 22. I.C.C. 13. Commerce 23. Rate Regulation 34. Commerce: State Tax 24. Discrimination 35. Commerce: No Tax 30. Antitrust 36. State Tax: Due Process 43. Business Self-inc. Progressivism ' 45. Federal Rates 46. State Rates Federalism Factor Federalism Factor Commerce Powers Factor 14. Conservation 8. Workmen Comp: Fed.-State 16. Land Claims 12. Commerce 31. Federalism 3 . Commerce: State Tax 32. Federal: Economic 35. Commerce: No Tax 33. Federal: Non-economic 27. Liability Railroads 38. Prohibition 44. Corruption: Business 39. Fe Fe&ce Darwinism Factor Libertarianism Factor 5. CL: Indians 1. First Amendment 15. Civil Rights 2. Civil Liberties 1?. Corruption 3. CL: Property 24. Discrimination 4. Criminal Due Process 25. General Liability 6. CL: Aliens 26. Liability: Insurance 7. Labor 2?. Liability: Railroads 18. Fiscal Claims 29. Patents 19. Fiscal Power 30. Antitrust 28. Bankruptcy 3?. Corruption: Government 40. J. Power: Lower Fed. Cts. 38. Prohibition Political Party 39. F. F. k C. 41. J. Power: Liberal 43. Business: Self-inc. 44. Corruption: Business Socioeconomic Status "i..— 198 Table 20 (cont'd.) Federalism Factor Party Factor General Welfare Factor 3. CL: Property 14. Conservation 6. CL: Aliens 16. Land Claims 15. Civil Rights 17. Corruption 28. Bankruptcy 19. Fiscal Power 38. Prohibition 29. Patents 40. J. Power: Lower Fed. Cts. 3?. Corruption: Government Political Party 38. Prohibition 44. Corruption: Business _ A See Table l for full names of scales. however. The correlation between Federalism and Libertari- anism is as high as in either individual period. These relationships suggest that the relationship between Federalism and Libertarianism is a stable one which exists in both periods and the total study. but the Judges' attitudes toward Liberal Nationalism shifted in response to the change of control of the national government from one party to the other. Our study involved the construction of three variables based on sociological and political influences on the Jus- tices based on the Judges lives previous to appointment to the Court. Most of these are discussed in Chapter 8 below but political party. Progressivism and socioeconomic status were used in the factor analyses along with the attitude variables. The Judges' ranks on these are given in Table 24 and supporting evidence in Chapter 8 and this chapter. below. if~ 199 Table 21.-~Highest Loadings of variables Across Multivariate Analysis Solutions of 1910-1920 variables Variables 49 49 49 49 49 “9 “9 “9 “9 “9 Dimensions 6 6 7 6 6 7 Rotation QT BQ VB HA SA QT BQ VR HA SA Liberal Nationalism Federalism 9. WCompNonFS P N N D N 31. Federalism F F F FS F 15. Civil Rts P NF NR D R 32. Fed: Econ. F F FS CS F 20. FReg:No-Ec P N N N N 33. Fed:No Ec. F F F FS F 21. FReg:Lib. P N N N N 22. I.C.C. P N N N N Political Party 23. Rates P N N N N 3. C operty L N R R R 24. Discrimin P N N D N 6. CL Aliens L N R R R 43. Bus: 8.1. P N N D N 28. Bankrupt L ND R R R 45. Fed.Rate P N N N N Party L NF RN R R 46. St. Rate P N N N N State Progressivism General Welfare 3. WComp:FbS P S S CS F . Conservn P G F8 F 10. Due Proc. P LS LS L 16. LandClaim P F G FS F 11. State Tax P S 3 CS S 17. Corruptn GP D G no G 12. Contract P S S S S 19. Fis.Power F L CL 03 F 13. Commerce PC S S CS 8 37. Cor: Govt GP D G DG G 34. Com:StTax PC 8 3 CS 8 38. Prohibitn C D G R 35. ComiNoTax PC S S S S 44. Cor: Bus. GP DS GS 03 G 36. Tax: D.P. P S S S S Progressivism P 8 NS S S Eggginism Libgztgrianism 25. Gen.Lia. PD N D D N . First . L L L L L 26. Lia.Ins. D D D- D 2. Civil Lib L L L L L 27. Lia.R.R. CP 8 SD C S 4. Criminal L L L L L 29. Patents D D PG DG G 7. Labor L L L L L 30. Antitrust D ND DN D N 18. Fis.Claim F L L F8 39. F.F.& C. G SD SB CS G 40. JPLodeCt L L R L 40. J.P.:Lib D D D 42. JPConserv P L L L Socioeconomic C S D R i Note that P = N + S See Table l for full name of variable and Chapter 2 for description. When two factors are shown. the leftmost one has a slightly higher loading. ' e to above 8%gbols 8 Darwinism Factor Progressivism ct3r Liberal Nationalism R a Party Factor State Progressivism VR 2 varimax Factor Analysis Federalism Factor QT = Quartimax Factor Analysis Commerce Power Libertarianism General Welfare 2 Similarity Analysis (HcQuitty. 1965) BQ = Biquartimin Oblique Factor Analysis HA a Hierarchical Syndrome Analysis (HoQuitty. 1966a) g OFO‘UMZ’U 200 oo:.-.:o)*eeoceoocc*o +ooooooooo ccceoco*eoooooceo‘ceoeooooo‘ 0.63% . Republican. Anti—Libertyl , 15 ProtGovernment.Federa1| , ~43 I ‘18 1 ‘ Anti-Darwinism : I I l l . I I .5 1 I u 1‘ l 0.36o : l . I . 1 l . I l o u; i I -23 ‘ * .0 i], 21 1? l I . e laboral Nationalism 1 I . 1° 31 Soclo-Emmhicl ' 6. * ‘STITUS I ' 0.0 I ' . 931 I i .5; m "I ,Pnoc REssowsw I 39 ' s. E I H e a e 1 (DH) .3; '1- . ~ 3“ -. I 138' .U) 36* ’7 3" 33 I (0 ll ,3 e "3435 State I z 8' ,g ., ’6 Progressivism I 8 g): .o' " HI). 53.-4' o 6 3. I * 1 . a Party I 3 I . .1 Cluster] I I 07 'VV 1 ' . I I . a 1 .‘I 0'8 .110 I I . Libertarianism 1 | I '. I | . t I -b.55+ ‘ I : . 23* 1 I . 1 .I o PARTY I It ' O *1 l : I . I I . l l _ ' Democratic IPro-Liberty ' ow.5$¢ I Anti-Government Pro-States' Rights ‘occsoO000.0000.I!OI+IOOOOOOOO.OOQOOOOOO*OOOIOOOO0.000000000‘ -0.88 -o.cs -0.44 90.23 -o.0? 0.19 0.4? See Table 1 for names of variables shown by number above. Figure 18.-~Principle Axis Configuration of Two Dimensional Solution of 49 Variable Factor Analysis. 1910-1920. 201 Table 22.--Correlations between Oblique Factor Axes from the 42- griableI 6- imensional solutionI 1210-1220 period Liberal State Libertar- Anti-Dar- Nationalism Progressivism ianism M State Progressivism .20 Libertarianism .23 .33 Anti-Darwinism .12 .20 .37 Federalism .02 ' .26 .23 .03 Table 23.-~Tau Rank Correlations between average Ranks for -..Fa_°1:_ - ”n1 1°.._....._.._.__e°d .. Liberal State Libertar- Anti- Feder- Nationalism Progressivism 153152 Darwinism ali§m_ g;:;;essivism .59 Libertarianism .33 .28 Anti-Darwinism .44 .49 .13 Federalism .31 .21 .46 .26 General Welfare . 41 . 31 . 36 . 51 . 59 202 Table 24.--White Court Judges ranks on Party. Progressivism. and Socioeconomic status Party Pro essivism Socioeconomic Status Clarke 1 l;* 3 Lurton 2? 11;... 5 Lamar 2} 11 if 10 McReynolds 4 7 ll Brandeis 5 l%* 2 White 6 13 12 Holmes 7 4 13 McKenna 8 10 1 Harlan 9 9 8 Hughes 10 3 4 Day 12* 5 7 Pitney 12* 6 9 van Devanter 12* 8 6 *Indicates tied ranks. These variables are ranked consistent with an hypo- thesized relationship to liberalism with 1 being most lib- eral. Hence. 1 is Democratic. pro-Progressivist. and lower socioeconomic status while 13 is most Republican. anti- Progressivist and highest class. The defense of the party ranks is as follows: Clarke (1) was from a two-party state and was more likely to be a rep- resentative Democrat than the Southern Democrats. McReynolds (4) bolted his party in 1896 as a “gold Democrat" and was hence less loyal to his party than Lurton and Lamar (2%). Brandeis (5) occasionally supported Republican Progressives prior to 1912 (Mason. 1946). White (6) was from a one- party area and was the son of a politically active Whig who had been elected Governor by that party. Holmes (7) was a Republican voter but stayed out of politics. McKenna (8) was an active Republican politician but his father was an Irish Catholic Democrat. McKenna's partisanship was purely opportunistic (McDevitt. 1946). p I . 203 The great importance of traditional family party on a person's attitudes in his early years while basic beliefs are being formed is substantiated by Dawson and Prewitt (1969). Harlan (9) was not always a Republican but had been a Whig. Democrat. and Unionist (1860). Hughes (10) exhibited a more marked independence of Republican politicians than the other Republicans. Rankings of the Judges on their association with the Progressivist movement are more subJective. Brandeis and Clarke (1%) were very active in Progressivist and reform movements. Hughes (3) was early identified with Pregres- sivism but in the 1916 election seemed aloof from their leaders.‘ (Pusey. 1961.) Holmes (4) was not a Progressive but had many friends active in the movement (Brandeis) and had a reputation for Progressivism (Murphy and Pritchett. 1961). Day’s (5) background and political experience was typical of a moderate (McLean. 1946). As Roosevelt's choice he may be suspected of moderate Progressivism. Pitney's position (6) is questionable as little is written on him. McReynolds (7) was no Progressivist but was an anti-trust prosecutor for the Justice Department under Taft and Wilson. van Devanter (8) was a stalwart Republican but as a Taft appointee may have been a moderate. He was young enough to have learned some Progressive ideas. Harlan (9) was a product of the pre-Progressive era. However. family influence goes both ways (Lane and Sears. 1964). and his sons were probably involved in Progressivism as evidenced 204 by the appointment of one of them to the I.C.C. The remain- ing Judges mostly received their off-Court experience from pre-Progressivist times and places. However. McKenna seemed to have some experience with Western anti-railroad popular sentiment (McDevitt. 1946) while White was most remote of all from Progressivism being appointed.during Cleveland's administration. Socioeconomic status is a more nebulous concept using various measures to reflect class outlook as family income and past social status. ethnic and religious status. and generations born in America. It is discussed in Chapter 8. The loadings of these background variables are given in preceding chapters and the resulting factor classification is consistent with expected attitudinal associations. Hence. the Progressivism variable associates with the Progressivism factors and Party associates with Federalism and Civil Rights (15). Socioeconomic status associates mainly with Darwinism. Now let us examine the two-dimensional configuration of points from the principal axes factor analysis of the vari- ables in Figure 18. Comparison may be made to Figures 3. 4. 11. and 12 for graphs of other periods. Duncan MacRae (1968: unpublished) in factor analyses of Congressional-role-call voting was able to achieve a two-dimensional configuration in which party represents 205 one axis and ”liberalism” the other. He does this by rotat- ing the axis so that the congressional organization votes along pure party lines falls on the party axis. We have in Figure 18 achieved essentially the same result without rotating the axes at all. In the 43-variable exclusive first-period graphs. all three methods (varimax. quartimax. and principal axes) gave this configuration. In the second- period study. several methods gave Progressivism as one of the two maJor axes. others gave Party as one. The two variables were too closely associated to fit an orthogonal graph since Progressivism and Party seemed associated in that period. Democrat Wilson was the Progressivist national leader in that period as we have noted. In the total-period study both quartimax and the prin- cipal axes solution showed a configuration with the two main axes located almost precisely on the Party and Progressivism variables (Figure 18). If unrotated axes are particularly psychologically meaningful as viewed by some authorities (Schubert. 1965a). then the Party and Progressivism influ- ences were dominant in White Court decision making. These axes represent 44 per cent of the data variance or about three-fifths of the variance accounted for by interpretable factors. In any event Figure 18 indicates that these two influences are the two largest influences on the White Court during 1910-1920. 206 Axis I seems to represent Progressivism on one end and conservatism on the other. Since the Progressivism variable is nearly right on that axis. the axis may be considered to represent “pure" Progressivism. which is a measure of the judges' off-Court association with Progressivist ideas. Most variables reinforce such an interpretation. all that load highly on Axis I involve economic liberalism or Progressive ism. Those that load low on the axis (to the right of -,5 have little relationship to Progressivism or liberalism such as the Judicial power variables (40. 41). giggl Rights (15). Bankruptcy (28). Prohibition (38). federalism (31. 32. 33). and civil liberties (1-6). These by contrast load highly on the Party axis (II) except for Prohibition (38). Labor (7). Fiscal Powers (19) and Business Rights (43) load on both axes. Both Progressives and Democrats supported Labor's rights and income taxes as historians note (Link and Catton. 1967). Democrats view Business Rights (#3) as part of the civil liberty concept. while Progressives see govern- ment investigative powers as neCessary for regulation in the public good. It may be asked whether Axis I and the main factor in all our analyses is really Progressivism or something else. Could it be modern liberalism. pro-government or equalitari- anism? variables loading high on this axis include the liability variables (25. 26. 27) which involve suits between businesses and are not pro-government. so Axis I is not pro-government. Among the variables loading highest on this 20? axis is Federal Regglations: Non-economic (20) which involves Progressivist pregrams clearly not equalitarian nor part of modern liberalism such as the white slave. narcotics. and prohibition laws as well as immigrant restriction laws. Further variables involving Corruption (17. 37) and Conser- vation (1h) seem unconnected to modern liberalism or equal- itarianism but were included among Progressivist programs. They do. however. impede greater inequity in the distribu- tion of wealth so may represent equalitarianism with a progressivist flavor. The opposing or anti-Progressivist view seems consistent with the Laissez-faire philosophy. It opposes intervention in all matters and advocates permitting self-interest and bigness in business to prevail unhampered. It also has some anti-equalitarian aspects of course. The second axis loads precisely on the Party variable so it should represent ”pure" party as MacRae (1968) and other analysts (Cattell. 1952) interpret axes. Libertarian- ism. Federalism. and other traditional party-involved issues load on this axis such as civil rights (15). debt-repudia- tion (28). Judicial power (#0. 41). and the income tax (19). The party axis may also represent such dichotomies as pro- and anti-liberty as well as its logical opposite pro- and anti-government since the liberty variables. if reversed. would be pro-government and the variables above Axis I are mostly pro-federal power. As part of the pro- government attitude Axis II also measures the federalism issue. the lowest clusters are anti-government. the middle one is . t, ...."r-|I.. ‘ r- » '3 208 pro-state and the top two are pro-federal (the topmost being anti-Darwinist or paternalistic). Hence. Axis II represents a cluster of several attitude-system axes which are related and may constitute an ideology. Axis I also contains a sim- ilar combination of related axes3 or attitude-systems: State Progressivism. Liberal Nationalism. and Paternalism (anti- Darwinism). This may also constitute an ideology. If the axes do represent the underlying influences hypothesized. then the position of the variables on the graph may be explained as invoking varying degrees of these two influences. For example. Qizil Rights (15) would be explained as #0 per cent party and 20 per cent Progressiv- ism with the rest error variance or unexplained factors. Socioeconomic Status associates very little with most attitudes. However. it does load and correlate with Darwin- ism. Lower-class Judges are anti-Darwinist and anti-big business as their class background would lead one to expect. Also it seems much easier for a person of wealth and a dis- tinguished family to believe that natural selection Justi- fies his position than for a lower-class person to accept the idea that his family and friends (and himself) were poor because they were inferior. His experiences and identity with them may lead him to reJect such a philosophy. 3One may conceive of each cluster as an axis passing through its center to avoid thinking in terms of n-dimen- sional spatial configurations. See Schubert. 1965a. 209 Tables 25 and 26 give typical loadings for the #9- variable. whole Court factor analysis: the six-factor quartimax and the seven-factor varimax. They may be com- pared with Table 21 above. Table 25. giving quartimax. shows a general Progressivism factor composed of both State Progressivism and Liberal Nationalism but contains a Com- merce Power factor and a small Federalism factor. It includes a Darwinist factor and a Libertarian factor. The Libertarian factor is particularly interesting. It contains some Judicial Power variables but practically no economic variables (except 7: Lgbgg). It is one of the few times that this factor contained only civil liberty variables sepa- rate from an economic content. Varimax in Table 26 split Progressivism into its state and national constituents. but had no Commerce Power factor. Darwinism. Federalism. and General Welfare also are separate factors.“ Libertarianism appears with some of its usual economic content (variables 10. 18 and 19). A new factor. Party. appears. The principal characteristics of the party factor are that the party rank variable loads higher on it and that it contains variables associated with party conflict in his- toric studies. roll-call analysis (Johnson. 19h3: Turner. “The comparisons between the quartimax and varimax results are easily explained by characteristics of the rota- tional methods; quartimax will form a general factor if one can be formed and varimax tends to split the data among as many factors as possible. 210 7hble 25.--Six Dimensional, Fourty-nine Variable Quartimax RfiTnT‘D FACTU” LOADING ”ATRIX. 1910-1920. i 9 3 4 5 6 1 “0-3751 “000182 0.0986 -001955 .007312 0-094? 2 “003103 00,3567 “0.0760 002223 "006663 .00077: 3 0.2809 0.2988 0.2490 0.1452 -0.5252 0.1461 4 -0.3112 -0.4698 -0.0903 '0.0472 -0.6008 '0.1647 5 -0.2867 0.0710 '0.0443 0.8091 ~0.1617 -0.0897 6 .0.3§92 .000995 ’0.2"10 “001440 005209 '0.4861 7 -0.4856 '0-1834 '0.0276 0.1511 '0.6725 0.0966 8 -0.3011 '0.1461 0.2‘16 -0.1890 -0.3695 0.4976 9 v0.6078 0.0029 “0.0638 034683 ~0.0495 0.0384 10 ~0.6896 '0.2086 0.1874 0.1340 '0.2734 '0.1254 11 -0.7019 '0.0787 0.3916 '0.2458 -0.1631 0-1435 12 -0.6746 -0.1o¢6 0.1403 ~u;0nea 0.0587 0.3026 16 ~0.6649 0.0089 0.5622 -0.2404 '0.1376 0.0834 14 -0.4590 -o.4188 -0.0024 0.3650 -0.1090 0.3050 15 -0.5166 0.2225 ~0.2585 0:3723 0.2600 .0.1653 10 no.5769 «0.4338 -0.1136 0.1141 ~0.1192 0.2361 17 o0.5463 -O.1¢56 -fl.2252 0:1859 0.0016 0.6110 18 o0.2566 -0.5831 ~n.2711 -U.1083 -a.3104 0.1?77 ‘9 -0.4925 .0.4770 0.0372 -0.0114 -0.2893 0.3870 90 -0.8591 p0.0218 -0.1449 0.0660 -0.0536 0.1003 21 .0.7030 0.0s38 -0.1280 -0.0674 -0.0626 -0.0998 22 .0.8158 0.0200 -0.1808 0.2372 0.0419 '0.0858 23 .0.9050 .0.0152 -0.1200 0.0684 no.0525 -0.0046 94 .0.7201 no.0914 0.1315 0.3603 0.0690 ~0.1266 ”S v0.6308 -0.1636 0.2964 0.4581 0.0548 -0.1728 26 -0.4862 0.3410 0.1291 0.5617 0.0448 0.3366 27 -0.5226 n0.0458 0.5088 0.2154 0.0216 0.1347 28 .0.0678 .0.0026 0.0394 0.2277 0.4446 ~0.477i 29 .0.2“87 -0.337? -fl.1805 0.4277 0.1816 0.1480 ‘0 -0.481? -0.1186 0.1884 0.5825 0.1188 0.1157 11 .0.3?74 -0.7893 0.1163 -0.0012 -0.0457 0.0566 12 ~0.3891 '0.5‘6F 0.0758 '0.3364 -0.1‘65 0.4204 13 -0.2677 -0.6024 0.0211 0.0321 0.0851 “0-1036 *4 -0-580° 0.1060 0.5868 '0.0777 ~c.1!63 0.1303 ‘5 -0.6023 ~0.0321 0.3968 “0.3405 0.1419 0.3042 10 ~0.7?61 '0.1°36 0.1627 ‘0.2147 -c.o?oi 0.1000 17 ~0.4645 -0.0°94 -0.2704 0.2163 0.1057 0.566? 10 0.1056 0.0?26 0.5790 0.0446 c.0170 -o.0859 19 -0.4464 v0.0n56 0.3390 0.1516 0.0469 0.5418 40 ~0.2‘46 0.0471 ‘0.0990 '0.2896 -O.5882 0.0358 41 ~0.1‘37 0.011“ 0.1‘31 0.5611 0.0851 “0.0687 dz ~C.b405 '0.4186 “0.1777 0.0018 'C.3‘41 “0.1280 43 -U.6=2° 0.1183 '0.0721 0.3071 0.1424 '0.232“ 44 -0.4136 —0.0038 0.0620 -0.2272 -0.1418 0.6999 45 ‘Undn97 '000961 .002796 001184 '000758 .000767 46 '0.8"4? "0-0188 41.0668 0.010? '9.JCZ4 '0-0338 Party 0.2820 «0.3440 0.2721 -L.nn4? -o.4P47 0.3458 froq%ess'005q32 "0.01C‘ "01:26 '001798 '30046? 000727 :55“ -o.1s10 0.00c4 0.5165 0.2661 -C.L083 0.015? Progres- -Federahsm Commerce Darwin- Libertar- Corrup- sivism + Gen.Wel. Powers ism ianism tion See Table 1 for names of variables numbered above. 211 Table 26.--Seven—Dimensiona1. Forty-nine Variable Varimax ROYAT‘D F4070” LOADING MAYRIX. 1910-1920. i 9 3 4 5 6 7 1 -0.1832 '0-6779 0.2789 ~0.1427 v0.1904 0.0108 0.3113 2 '0-2104 '0.7853 -0.0?98 0;1‘88 0.1068 0.0250 0.2716 5 0.1290 e0.0856 .0.0123 0.1123 .o.2sei .c.1304 0.6517 4 ~0.0678 .0.8472 0.0957 0:0120 0.1346 -0.0071 0.0018 5 -0.4466 -0.1056 -n.2029 0.6840 0.0470 0.0440 0.2238 6 10.2900 0.0793 * 0.0452‘ ~020378 0.0598 -0;1653 -0.7041 7 '0.2704 -0.7060 0.1566 0.1433 -0.0085 0.1706 0.3025 8 .0.0447 .0.2322 ' 0.4656 ~0.1318 0.1541 0.2606 0.4199 9 ~0.6335 n0.2128 0.1165 0.4304 0.0477 0.2587 .0.O438 10 .0.3870 .0.5443 0.3999 0:2868 0.1930 0.0148 -0.0721 11 .0.3506 .o.2534 0.7935 0.0155 0.0373 0.0973 0.0393 12 .0.3?e7 .0.14?3 0.5410 0;0447 '0.2119 0.3748 .0.0831 13 .0.2705 .0.1s29 0.8624 0.1021 .0.0636 .0.0451 0.0630 14 .0.1786 .0.3498 0.1482 033958 0.2927 0.4700 .0.0153 15 ~0.S366 -0.0140 -0.0634 0.3792 .0.2413 0.1590 -0.4290 16 -o.2828 -o.434n 0.2121 0.1164 0.3301 0.4413 -o.o944 17 -O.3140 -0.1879 0.1727 0.1092 0.1497 0.7796 0.0320 18 0.0686 o0.6845 0.0355 ~010844 0.2219 0.3469 o0.1661 19 -0.0605 -0.4721 0.3184 0.0384 0.3203 0.4452 0.1215 20 o0.7693 -0.1944 0.2952 ~020288 0.1534 0.2948 -0.0187 21 -0.7855 «0.1880 0.2849 -0.1563 0.0833 0.0651 o0.0434 22 -O.7299 n0.2490 0.1912 0.2315 «0.0083 0.2203 -0.2718 23 -0.7194 -0.3131 0.3492 0;0917 0.0719 0.2477 .0.1006 24 -o.7435 -o.o«35 ‘ 0.2290 ’022960 0.2944 .0.0055 0.0199 25 «0.5313 -0.1181 0.2747 0.5310 0.3009 -0.0041 -0.0547 76 -0.5‘27 0.2091 0.1658 0.5062 -0.1082 0.3442 0.244” 27 -0.1723 v0.0897 0.6370 0.5244 0.1161 0.0542 0.038“ 28 -0.2660 0.2842 ~0.1473 0.2005 0.2078 o0.3541 .0.3831 79 .0.202? 0.0491 '0.2168 0.2019 0.4997 0.3078 2.000’7 ‘50 '0.5027 0.0959 “0190“ 000973 08333” 001754 0'1446 31 -o.0514 -o.3437‘ 0.2155 0.0054 0.7628 0-1426 70-0877 ‘2 0.0521 -o.3735 0.4734 '0;2317 0.3918 0.4308 0.0724 33 -0.1478 .0.2164 0.0604 o0.0413 0.7566 0.0181 -0.132’ 34 .0.3138 uU.0866 0.7274 0.1513 0.0371 -0.0380 0.2401 15 .0.1107 .0.0787 0.8305 0.0109 .0.0032 0.2536 -0.166’ 1t ~0.3147 -0.3"96 0.6171 0.0055 0.1085 0.2112 -0.205? 37 -O.3071 -0.0358 0.0837 0.1160 0.0838 0.7442 -0.0231 ‘8 0.2036 0.2284 0.2420 021933 0.1527 o0.3651 0.247“ 39 -0.1383 0.0670 0.5221 023113 0.0692 0.4583 0.171Q 40 -0.2°86 -0.3‘93 0.1023 -0.4164 -0.0280 -0.0999 0.4‘0r 41 o0.0890 -0.0843 -0.0194 0.6897 ~0.0803 0.0437 -0.i4p7 42 -0.3586 ~0.6459 0.1055 -0;0361 0.2617 0.0938 -0.0763 43 .0.7154 .o.oAin 0.0796 0:3724 0.0040 0.0210 .0.2178 44 -0.089? -0.1"61 0.4902 -0.1425 ~0.0477 0.5684 0.1084 45 -0.7428 -0.2944 0.1784 0.0294 0.0714 0.2327 -0.118° 46 .0.7419 u0.2148 0.3743 0.0073 0.1149 0.1724 ~0.1491 Party 0.3957 -o.2~a? 0.0917 .0.0131 0.3217 0.1022 c.5=51 progress-0.4466 '0.0690 0.4662 ~0.1411 0.1590 0.0674 0.0667 538 000‘27 '0.0131 "03.175 015301 'fljflflfil 41110744 [2.13511 ‘Liberal Libertar- State Darwin- Federal- General Party National iamism Progress. ism ism welfare See Table 1 for names of variables numbered above. 212 1951). or on the basis of our earlier findings. These include (3) £121; Liberties: Property. (6) 9121; Liberties: Aliens (Turner. 1951). (28) Bankruptcy (Johnson. 1903) in Table 26. Other analyses suggest the addition of (15) Civil Rights (Turner. 1951; Johnson. 1903). (38) Prohibi- tion (Johnson. 1993). and (4) Judicial 2232;: £232; Federal Cgurtg (Nagel. 1962). On these issues the Democrats are pro-liberty. pro-alien. pro-debtor. anti-Negro. anti- prohibition. and anti-Judicial pewer. The two separate periods of the White Court contained many variables which were constructed with similar criteria in each period so that comparisons could be made between the two periods. The factors in each period were also defined similarly so that six factors are present in both periods. Hence. we may now compare the variables and factors in both periods to check their validity and examine and offer expla- nations for changes. Also the multivariate analysis of the entire period is a further source of comparison and verifi- cation. Table 2? shows the relative sizes of the factors across the various analyses. All factors found in either of the two periods are also found in the whole period study except Laissez-faire and Judicial Restraint. The former was a marginal factor which is probably the reverse of Progres- sivism and is likely submerged in that factor in the total analysis. Judicial Restraint was reduced from five to three 213 Table 22.--Compgrative Sizes of Factors Across Time Periods Per cent variance No of Exglained variables 1 2 W 1 2 H Liberal Nationalism 19' 10 16 22" 12’ 11 State Progressivism 8 19 13 8 13 9 Progressivism 27 29 29 30 25 30 Libertarianism 17 17 ll 18 17 12 Federalism 10 8 6 l4 6 5 Commerce Power 8 6 11 General Federalism l8 8 12 29 6 13 Darwinism 12 ‘85 13 16 General Welfare 7 8 8 8 7 8 Laissez-faire 5 6 9 6 Political Party 6 7 Judicial Restraint 9 8 Total3 70 80 70 58 58 09 1 = 1910-1915 Period 2 = 1916-1920 Period 0 I Whole Period 8variables in the column total reflect the fact that some variables are in several factors. 210 variables in the second period and whole period study: hence it may have become too small to measure independently. Other changes between factors include the decrease in variance of the federalism factors. Commerce Power dis- appears in the second period. largely merging with State Progressivism.S Federalism likewise becomes smaller. This suggests that the traditional states' rights issue was becoming outmoded or discarded in favor of the newer ideo- logical schism. Progressivism. Our previous analysis indicated that the second period became much simpler in structure. reflecting a growing polarization between a liberalism and conservatism into which the division event- ually evolved.6 The issues of conservation. land claims. 5Commerce Power variables which merged with State Pro- gressivism in the second period include (13) Commerce3 and 30 Commerce: State Tax. ,ngznntign.1n.§gginggs goesto Liberal Nationalism and General Welfare since it involves mostly national laws in the second period rather than state. Full Faith and Credit (39) becomes part of Darwinism since it involves the right of states to handle their own affairs. Workmen's Com ensation: Federal-State Conflict (8) now merges with tfie remaining Federalism variables. These re- flect the growing ideological polarization of the Court. 6The results of Sprague. 1968 reinforce these findings. His study of bloc voting indicates more polarization on the Court in his 1930-1959 period than in the previous period. 1889 to 1929. This suggests that by the last period ideo- logical polarization had occurred. Also he finds that the federalism variable becomes ”contaminated“ by economic liberalism as the C.R. of the federalism scales is low. See also Mattingly (1969) who finds sharp polarization on the Hughes Court. Schubert (unpublished. pp. 100-102) finds a single liberal-conservative dimension in the Taft through the Roosevelt Courts. Since this was not true of the 1910- 1915 period. we may conclude that this polarization occurred in the 1916-1920 period. 215 property rights. Indian rights and corruption all Join the Progressivism factor in the second period. Judicial Power variables furthermore become part of libertarian or Darwin- ist 1881188 . While the Commerce Power issue merged with Progressiv- ism. a new factor split off. Darwinism. This factor was still highly related to Progressivism as the Table 17 corre- lations indicate. Darwinism split off from Liberal Nation- alism7 and added some Judicial Power variables (01. 57). This development may have been prompted by the split in the Progressivist movement between the Taft-Wilson position and the Theodore Roosevelt position over whether trusts should be preserved under government regulation or broken up to restore the virtues and advantages of competition. This split was widely debated in the 1912 election and thereafter (Mom. 1958) . Examples of shifts in variables due to the ideological polarization of the Court include (14) Conservation and (16) Land Claims which become disassociated with Federalism as in the first period and in the second period merge with State Progressivism as it is part of the Progressivist ideology. This may account for (19) Fiscal Power moving from Liber- tarianism to Progressivism. It involved mostly income and 7Darwinism variables which split off from Liberal Na- tionalism include nine variables. They are: (5) Civil ELEV erties of Indians. (15) Civil Rights. (29) Discrimination (25) General Liabilit . (26) Liabi it 1 Insurance. (27) and (08) Liab—1'1 itf."n'aT1 roads. (3'07 Ant‘i't'rust'.‘ "ABE-Hi3) Business. Self- ncr m nation. 216 corporate taxation. The distinction between the two Progressivism factors in both periods was so slight that several variables switched from one to the other between the two periods. Hence (19) Federal Fiscal Powers loads on the state factor in the second period. while (#6) §£§£§ §§£§§ loads on the federal factor in the first. Likewise (20) Federal Regula- tion: Non-economic loads on the state factor the first period. This may be due to chance variation placing vari- ables in the "wrong” category. The movement of (9) Workmen's Compensation-NggyFederal- State Conflict to the state factor reflects the changing content of that variable: it contained mostly federal cases in the first period and mostly state cases in the second. Likewise (38) Prohibition contained mostly state laws in the first period and loaded with State Progressivism but contain- ed all federal cases in the second period and loaded with Liberal Nationalism. This is also true of (3?) Corruption in Government. The growing simplicity of ideology in the second peri- od also accounts for many variables which logically seemed to fit in Libertarianism in the first period but loaded instead with Liberal Nationalism and Federalism. These probably tapped the states' rights dimension in the first period. When this dimension became less salient they all moved into Libertarianism. They include: (3) Civil 217 Liberties: Property. (6) Civil Liberties Aliens. (15) Civil Rights of Negroes. (#3) Business: Self-incrimination. and the bankruptcy (debtor) variables (28. 09. and 52). All of these (except #3) are also in the Party factor in the whole Court analysis. Hence. a growing ideological split along party lines also occurred in the second period. centering around the Libertarian factor. An analysis of phi correlations and "raw" interagree- ment correlations did not reaffirm the previously defined factor structure as clearly as did the corresponding compar- isons for period one and period two.8 Nevertheless the factor structure of the Q-analyses roughly corresponded with the R-analysis factors (see Table 28). In each analysis principal axis loadings were equiva- lent to varimax and quartimax loadings. but the phi analysis gave slightly different results from the raw data analysis. The first factor on all six analyses (all rotations) was Progressivism. explaining 10.1 per cent of the variance. Phi varimax I (PVI) for example correlated .72 with Progres- sivism. .71 with State Progressivism. .55 with Liberal Nationalism. .49 with Equalitarianism. .05 with Libertarian- ism. and -.36 with Laissez-faire. On this factor Clarke. 8The reason may be due to the fact that factor scores for the identified factors were not used but rather average ranks were compared with the ranks of the Justices on the phi factor loadings and "raw data" factor loadings. The result- ing tau correlations wasted much of the refinement of the data. 218 Table 28.-~ White Court Justices' Average Ranks for Major Factors and Loadings on Phi Q-Analysis for Whole Court Analxsig. 1210-1220 State Lib. Dar- Lib. Prog- tar- win- Ranks Nat. ress ian ism Holmes 7 5 6 12 1 3 Brandeis l 3 Pitney 2 3 13 1 White 9 12 8 13 McReynolds 12 13 12 9 Day 6 7 9 7 Clarke 0 2 2 2 VanDevanter 10 ll 11 11 McKenna 8 6 10 4 Hughes 5 4 4 8 Lamar 11 8 5 5 Lurton 13 9 7 10 Harlan 3 10 l 6 Fed- eral Judi- Equal- Gen. - cal itari Wel- ism Restr.anism fare "‘8‘ “'§§"‘17“"'II 2 4 2 3 7 12 11 0 9 52 42 10 3 1 l3 6 ll 11 9 5 l 7 1 l 13 9 12 13 12 10 10 12 5 3 8 8 10 8 a; 7 6 2 3 9 0 13 6 2 Phi Correlation QrAnalysis varimax Loadings PVl PV2 PV} PVN 3511:0211 Holmes -.12 .02 -,53 .09 -.15 .05 .95 Brandeis -.97 -.15 -.08 .06 .00 -.07 .52 Pitney -.09 .Ol .92 .09 -.20 -.27 -.01 White .19 .11 -.02 .13 .05 -.55 -.O3 McReynolds .58 -.05 -.02 .ll .00 .09 -.31 Day -.01 -.09 .13 -.67 -.03 -.10 -.03 Clarke -.66 -.00 -.02 -.03 -.03 -.07 .oo vanDevanter .50 .0? -.O7 -.31 -.02 .17 -.02 McKenna .07 .76 .07 .01 .09 .03 -.08 Hughes -.01 -.03 -.03 -.02 -.51 -.03 .03 Lamar .05 -.21 -.l? -.l7 -.17 .26 -.02 Lurton .02 -.02 -.63 .12 -.O9 ..00 .Ol Harlan .01 -.57 .30 -.38 .32 -.22 -.08 PPl PVl 8 RPl a RVl - Progressivism PV2 = PV3 2 RV = RP3 8 Darwinism PVh a RV a Political Party PV6 = RV2 = Liberal Nationalism PV? 8 2nd P = Principal Axes Factor V = varimax Rotation Factor let P = Phi Correlation R = Raw Data Correlation Libertarianism-Federalism-General Welfare Commerce Power RP2 = Judicial Restraint 219 Brandeis. and Holmes loaded highly positive and McReynolds. van Devanter and White loaded highly negative going from the most to the least extreme. Another factor. PV2. was a composite of General Welfare (.59). Federalism (.44). and Libertarianism (.141). orplain- ing 7.7 per cent of the variance. Harlan loaded highly positive and McKenna loaded highly negative. Note that Figures 17 and 18 also indicate that the second factor is a composite of these three attitude factors. Hence. finding this factor is consistent with our previous factor analyses. PV3. RP2. and RV39 seemed to represent Darwinism. accounting for 7.8 per cent of the variance. Holmes and Lurton were highly pro-Darwinism and Pitney and Harlan were anti-Darwinist. th and th correlated with Party (.39 and .09) and other variables of the Party factor. suggesting that it represented that factor. Day. van Devanter and Harlan showed up as highly partisan Republicans. It accounted for 6 per cent of the variance. PV6 and RV2 correlated with Liberal Nationalism at .52 and .31 with White being highly conservative. PV? represented the Commerce Power factor as it cor- related .51 with the Commerce variable (13). It represented 9RP2 and RV3 refer to ”raw data“ analysis (R) of principal axes (RP2) and varimax (RV3). 220 0.5 per cent of the variance. Holmes and Brandeis were highly liberal while McReynolds was highly conservative. PV5 correlated with no attitude factors but it may be significant that it correlated with enough background vari- ables to suggest that it might represent dogmatism. It correlated with age (.36). religion (.31). socioeconomic status (.26). and years on the Supreme Court (.26). The older. senior Judges who were of low status were high on this factor. They also opposed the rights of Indians and voted to punish corruption in business. This suggests a narrow. punitive disposition. but this hypothesis is not borne out by comparison with other civil liberty variables. Hughes would be highly nonpdogmatic while Harlan would be dogmatic if this factor measures this dimension. Comparison with our first and second period Qpanaly- sis reveals that only in the whole period was no Laissez- faire factor found. Libertarianism by itself was not found in either the first nor whole period Qpanalysis. Evidence of both Federalism and Progressivism was. however. found in all three studies. reaffirming the importance of these fac- tors. Progressivism was clearly the most significant and stable factor in all three studies. The connection of Libertarianism with Federalism or economic variables may account for its failure to appear as a separate factor on two out of three Qpanalyses. 221 Strong evidence thus exists for the invariance of at least five factors: Liberal Nationalism. State Progressivism. Libertarianism. Federalism. and General Welfare. How can the differences in factor structure between the two periods be accounted for in the light of the supposed invariance in attitudes across time? Political scientists have suggested that voters and legislators take positions on political programs according to reference symbols (Key. 196#. pp. 63-60). Vbters who identify with a party or an ideology such as liberalism will often support programs associated with that symbol (Campbell. 1969). Legislators will often vote along fac- tional lines. being either for the governor's program or against it (Jewell. 1962. chap. 3). Congress will react for or against a president's program in terms of their approval or disapproval of him (Edelman. 1960; Crotty. et.al. 1966. pp. 999-513: see also Sorauf. 1968. pp. 302-343. 348-350). Psychologists present essentially this same concept in the attitude theory of "congruity" (Osgood and Tannenbaum. 1955: Insko. 1967) in which a person shifts for or against a statement (or issue) in proportion to its association with a personal reference symbol. Hence. a Republican often exhibits an automatic bias against a program advocated by a Democratic president and a favorable bias toward a program favored by a Republican leader whom he admires. 222 The evidence indicates that many changes in the factor and attitude structure between the two periods is explains able in terms of congruity theory and that the White Court Judges shifted in attitude as a reaction to national party leadership. Why were the intercorrelations between Liberal Nation- alism. State Progressivism. and anti-Darwinism lower in the whole study than in either individual period? Part of the answer lies in the increasing complexity of the data due to having more Justices. Thus we expect more factors and ones which are less related. However. Federalism and Libertari- anism remain highly intercorrelated. Much of the explana- tion. however. seems to be related to considerations dealing solely with Progressivism. The most important reason for this anomaly is that the change in party control of the national government shifted the Judge's attitudes toward Liberal Nationalism. The same considerations also explain the change in structure of Progressivism from the first period to the second. that is the splitting off of anti- Darwinism from Liberal Nationalism and the increase in cor- relation between the Liberal Nationalism residue and State Progressivism. In the second period case context. the national leader of Progressivism was no longer a Republican like Theodore 223 Roosevelt or Taft10 and was instead the Democrat. Wilson. Hence. the Republican Judges no longer felt an allegiance to a Republican Progressivist administration nor felt identi- fied with such a national program. Instead the Court was faced with a Democratic national Progressivist administra- tion which evoked the traditional emnity of the Republicans and the sympathy of the Democrats. Several methods indicate that in general the partisan Republicans supported Liberal Nationalism in the first period while Democrats opposed it. In the second period no such relationship exists. Our party variable correlates .70 with the average ranks of Liberal Nationalism in the first period (Republicans were more liberal). but only .16 in the second period (Democrats now being liberal).11 When the average ranks of the Liberal Nationalism factors for the two periods are compared for only the seven Judges incumbent in both periods. it is found that three of the four partisan Republicans (with Pitney the exception) shifted one or two ranks against Liberal Nationalism while Holmes and White shifted favorably towards Liberal National- ill (Table 29 below). Pitney and McReynolds did not change. 10Taft originally wore the mantle of the leader of Progressivism although Roosevelt and others charged that he had betrayed their cause. Nonetheless. he approved and took credit for many Progressivist programs. more of which were passed under his administration than under Roosevelt (Kelly and Harbiscn. 1963; Mcwry. 1958). 11A scale of Liberal Nationalism cases in the October 1908-1909 terms of the Fuller Court also correlates .55 with party. Republicans being more liberal. 224 Table 29.-~Judges' Shift in Attitudes toward Liberal Nationalism Changes in Attitudes of Seven Judges Common to both periods of the Court Judge Part1 Change in R k Holmes Independent Republican + 5'- Pitney Republican 0 Day Republican - 1 van Devanter Republican - 2 McKenna Republican - 2 White Democrat + 2 McReynolds Democrat 0 + indicates shift to liberalism from lst to 2nd period. Significance of Judges' Ranks on Liberal Nationalism as tested by t-test compared to average ranks of entire universe of ranks on all scales First Perigg. 1210-12;§ Judge Part! Significance Direction Holmes Indep. Rep. . 3 Conservative Pitney Republican .0000 Liberal Day Republican .002 Liberal van Devanter Republican .058 Liberal McKenna Republican .016 Liberal Hughes Republican .200 N.S. Liberal Harlan Republican .0000 Liberal White Democrat .069 N.S. Conservative McReynolds Democrat .0000 Conservative Lamar Democrat .005 Conservative Lurton Democrat .0000 Conservative 225 Table 2 cont'd.) §econd Period. 1216-1220 Jud e Party Siggifiicance Direction Holmes Indep . Rep . . 3 Liberal Pitney Republican .0000 Liberal Day Republican N.S. Van Devanter Republican .001 Conservative HoKenna Republican .0003 Conservative Brandeis Democrat .0008 Liberal White Democrat N.8. McReynolds Democrat .0000 Conservative Clarke Democrat N.S. Tests of consistency of attitude toward this attitude system by an F-test of variance of ranks on this factor as compared with total variance of all Judge's ranks showed all Judges to be consistent in attitude toward this factor (at a significance of .03) except Holmes and Lamar in the first period and Day in the second period. 226 Analysis of the constituent Liberal Nationalist variables shows a similar pattern. Holmes is considered an indepen- dent whose associaticn with the Republican party was purely nominal.12 He never ran for office or campaigned for his party as did all the other Judges of the White Court. His shift is probably due to the influence of Brandeis as will be shown below. . If we treat each factor as a group of its constituent variables and separately analyze the ranks of each Justice for each group or factor we can compare the average ranks of each Judge between any two factors by a t-test (McNemar. 1962).13 This permits the testing of whether a Judge differs significantly in attitude toward Progressivist programs when on a state rather than a national level (Liberal Nationalism). It will also tell us whether he is more favorable (in rank) to state or national powers.1u 12Holmes attempted to maintain an attitude of indepen- dence from Theodore Roosevelt's influence as a Judge. This resulted in a personal attack on him by Roosevelt. See Howe. 1961. See also Frankfurter. 1961. p. 18. Also see p. 64 for White's admission that Roosevelt had a tremendous influence on the Court. 13On the appropriateness of such a test see Chap. 1 above. These tests are used only for comparative purposes. 1“Thus we may conceive of the attitude system of Prog- ressivism being composed of two subcomponents. an attitude toward obJect and an attitude toward situation. (See Rokeach. 1969s Spaeth and Parker. 1969). Thus the obJect is the Progressivist program and the attitude towards it is examined in two separate situations: (1) at the state level and (2) at the national level. We may also conceive of these factors as the interaction of values. Equalitarianism is a value common to both factors. The other governmental values. federal power and states' rights. may be instrumental values. 227 As expected. in the first period those Judges signif- icantly more favorable to state Progressivist legislation than federal (as Judged by a .05 error level of significance) were Democrats except for Holmes. They included McReynolds and Lurton. Those significantly more favorable to federal legislation were all Republicans except for White. Theyz' included Day. van Devanter. and Harlan. In the second period. Lurton and Harlan were replaced. The new Justices. Brandeis and Clarke. saw‘nc significant difference between state and national programs. Furthermore. McReynolds became less anti-federal and Day and van Devanter became slightly pro-state (but not significantly). In fact. few on the Court retained any significant discrimination in their attitude to Progressivism whether at the state or national level (as measured by the t-test) except Pitney and White. both more pro-national than pro-state. Consequently. Republicans no longer gave particular support to national programs out of partisan identification with them. and the Democrats. traditionally anti-national. no longer retained a significant opposition to national Progressivist programs. McReynolds and White are still anti-Progressive but oppose national programs no more than state ones. Comparisons of average ranks for the two Progressivist factors and the mean of ranks of constituent variables for both periods reinforce the above findings. 228 Hence. the second period is more simple in structure because party and federalism influences on the Progressivism factor decrease due to the Democratic dominance of the national government and the Wilscnian championing of Progres- sivism. Next we note that Darwinism (or anti-Darwinism) in the second period has split off from Liberal Nationalism. The total number of variables and per cent of variance explained by these two factors in the second period is equivalent to the first period Liberal Nationalism. Anti-Darwinism represents principally a bias against big business rather than the support of federal regulation of such. Some of its variables do involve such federal regulation. however. such as Antitrust (30) and Discrimina- 21.29, (am. For the first period. the variables that were in Darwinism in the second period were compared with the Liberal Nationalism ranks. Only Lamar and Lurton showed any signi- ficant differences in attitudes toward Liberal Nationalism and anti-Darwinism. Both were more opposed to Liberal Nationalism than to anti-Darwinism. They may have been influenced both by traditional Democratic opposition to the national government and by more contemporary Southern popu- list and rural antagonism to big business. Hughes was slightly more favorable to Liberal Nationalism than to anti-Darwinism. Perhaps he was influenced to support his —__ _# 229 party's national programs. but he was also less antagonistic to big business as a consequence of his corporate law prac- tice in New York. In the second period these Justices are not on the Court. but the Justices that remained shift greatly in atti- tude so that seven of the nine now reacted significantly differently to the two attitude systems (at a .06 or lower error level of significance). There is some shifting of attitudes on Darwinism. Among the seven Judges incumbent during both periods. White shifts three ranks against big business. while Holmes and McReynolds shift two ranks in favor of big business or Darwinism. White probably shifts as he does on Liberal Nationalism because he identified with the Wilsonian Demo- cratic antitrust policy. McReynolds did not so identify. obviously. This could be a socio-psychological reaction to the position of Clarke and Brandeis. both of whom he hated (Early. 195“). It could be due to a general shift to con- servatism which he exhibited between the two periods.15 Lastly. it could be part of a process of transition from the role of trust-buster to that of a Judge independent of political influences. Holmes' shift seems to be caused by a reversion to his preferred attitudes. since he was basically Darwinist in a,“ 15This shift could be illusory. His ranks in the first period were based on a small number of cases (all in the 1915 term. 230 philosophy (Howe. 1961: Lerner. 195“). In the first period. other influences probably led him to act more liberally than he really was. It may have been a reluctant attachment to the political policies of Theodore Roosevelt and Taft reinforced by Republican Judges on the Court. especially Hughes. which led him to withhold dissents in the hopeless cases of a 7-2 vote against him. It might have been due to the influence of Lurton with whom he was closely associated as indicated by phi correlations. Lurton was more biased against big business. When we examine the Judges who differentiate between Liberal Nationalism and anti-Darwinism in the second period. the reasons for the separation of Darwinism becomes clear. It is again related to party. None of the Judges who were significantly more favorable towards Liberal Nationalism than anti-Darwinism were partisan Republicans. They include Brandeis and White. Democrats. and Holmes. the independent Republican. Those who were less favorable to Liberal Nationalism than anti-Darwinism were all regular Republicans except for McReynolds. They include Day. van Devanter. and McKenna. McReynolds was consistently pro-states' rights and anti-national. which explains his position. We may expect attitudes toward big business (Darwinism) 16 to remain fairly stable. but attitudes toward a national program of legislation may change as the party control of 16This attitude system seems related to the basic socio- economic status of the Judges' family rather than party. 231 the government changes. as we have seen. Hence. Darwinism and Liberal Nationalism form separate factors as the anti- big business attitude becomes disassociated from attitudes toward national power which shift due to the turnover in party control of the national government. van Devanter and Day shift most. both of them being much more anti-Darwinist than pro-Liberal Nationalism in the second period than they were in the first. Party does not correlate highly with Liberal National- ism in the second period (.16). however. since traditional Democratic opposition to national power still has its effect. A clearer picture of the shifts of the Justices toward the Liberal Nationalism factor may be seen in Table 29. Clearly political party is the dominant factor prompting this change: and it appears to be a reaction to the turn- over of control of the national government and leadership of national Progressivist programs from the Republican to the Democratic party. All Republicans shift negatively toward Liberal Nationalism from the first period (Republican administration) to the second (Democratic administration) except for Holmes (an independent Republican) and Pitney. Pitney is the most extreme liberal in both periods and exhibits no change. Obviously his commitment to this fac- tor is so deep that a change in parties does not affect it. Democrat White changes favorably to National Liberalism while McReynolds does not shift. McReynolds is consistently 232 opposed to Liberal Nationalism and likewise the depth of his opposition transcends party considerations. Holmes acts like a Democrat due to his close relationship with Brandeis who Joined the Court in the second period. When we examine (in Table 29) whether Judges are con- sistently more liberal on this issue than their average rank on all issues. our findings are confirmed. In the first period all Republicans are more liberal on Liberal National- ism than their pcsition on other issues. All Democrats and Holmes are more conservative. In the second period no clear pattern exists. This situation occurs because Republican commitments to the sup- port of national power and Democratic commitments to states' rights is an interferring variable and partly counteracts a reversal of position as the party controlling the national government changes. Hence. Pitney and McReynolds retain their first period positions as the extremity of their views would lead us to expect. Otherwise the remaining Republicans and Democrats either follow the expected pattern or show no preference toward Liberal Nationalism: Republicans van Devanter and HoKenna now are conservative while Brandeis and Holmes are liberal. Clarke is now the extreme liberal on most issues so he can hardly be "more liberal” on this one. 233 Both Federalism and Libertarianism change very little between the two periods.) Both are significantly correlated with party (a tau of .32 and .37. respectively). and changes in the national administration had little effect on them. 1 However. party correlates higher with them in the second period (.65) than in the first period (.31 and .49. respec- tively). This sharpening of party lines on these issues probably are due to a larger Democratic bloc of Judges who were all appointed by Democrats. hence had fewer loyalty conflicts and were more representative of the party (includ- ing some non-Southern Judges). Commerce Power is a factor on the first period but not in the second. In the second period it becomes part of State Progressivism. The Judges who in the first period have sig- nificantly different attitudes toward the two issues are Lamar and Harlan (.oou and .007 significant levelsl7 on the t-test). Lamar following his party and region supports state commerce powers. Harlan.following his party and supporting his party's administration,uphclds federal commerce power. White shows a less marked distinction to differentiate between the two factors (.02 significance). favoring state commerce powers over federal. In the second period with his party supporting a national Progressivist program. White no longer makes such a distinction. 17These figures refer to the chance of an erroneous conclusion that the relationship is significant. 234 Commerce Power seems to be an anachronism in the first period. important to the older Judges who were fighting traditional legal battles which had become outmoded. When these Judges (Lamar and Harlan) left the Court and White conformed to group perceptions of these issues in the second period. Commerce Power as a separate issue faded from view.18 It became merged with issues of Progressivism and state power generally. Judicial Restraint as a factor seems to suffer the same fate as Commerce Power. In the first period. eight of eleven Judges show a consistent attitude toward this issue (according to a F-test of the Judicial Restraint variance as opposed to the variance of each Judge's ranks on all scales) and have average ranks on this issue significantly different from their average ranks for the entire sample (a t-test of better than .005 significance). In the second period only three of nine Judges show similar consistency and signifi- cant rank differences on this issue. The first period includes Holmes. White. McReynolds. and Hughes as pro- restraint Judges and Pitney. Day. van Devanter and Lamar as pro-Judicial Power Judges. In the second period only Holmes and Pitney retain their views on this issue to a significant degree. McKenna then became marginally pro-Judicial power19 181t still remains as a separate scale or attitude but not a separate attitude system. 19HoKenna's shift might be due to a long-time associa- tion with the Judiciary and separation from the political process. a hardening of the Judicial arteries. —- 235 while White greatly decreased his opposition to it. Brandeis) also is slightly pro-restraint (.05 significance). Hence. the weighing of this issue as of importance in the Judges' decision making decreases at least by half. It is highly likely that this issue became subordinated to the then contemporary issues of Progressivism and perhaps party issues. The traditional restraint issue then became less salient than the Judges' attitudes toward the newer liberal- conservatism polarization of political opinion. A further possibility is as follows. Hughes and Lamar left the Court to be replaced by Judges less concerned on this issue. McReynolds and White were pro-restraint because they opposed federal Judicial power because it strengthened nationalism and because federal Judges were largely Republi- cans. Day and van Devanter were pro-Judicial power because they were of the opposite party. When the Democrats achieved power. the position was reversed and Democrats no longer opposed federal power as strongly nor federal Judges who were no longer overwhemingly Republican (after four to eight years of Democratic rule) nor did the Republicans support them as strongly for the same reason. Hence. all four no longer consider this issue strongly. A possible hitch to this explanation is that Hughes. a Republican. opposed Judicial power while Lamar. a Democrat. supported it. However. Hughes was a Progressivist who avowed a strong faith in popular rule while Lamar not only 236 Lft but seemed to favor power for Judges 9 and had been disapprobative of the elec- ee Lamar. 1926.) :e exceptions can be explained. the hypo- te as becoming submerged in other issues Thus in the second period we have fewer Lles involving this issue as well as fewer it differently than other issues. Even- ras raised by political leaders throughout 2rwards and although Holmes and Brandeis it. the strength of the overriding :rvatism issue pushed it to a minor role. igg.--It may be appropriate to consider the :he light of theory of a closed attitude :0 a Judicial system open to outside LS the attitude structure of the two .milar. a conclusion seems warranted that were taken into consideration by the : seems as though the attitudes. attitude 1d ideology of the Justices set the para- 1 making on the Court; outside influences : on the decision making within those para. :ions of political party. association with national leadership and control of the :arly have their impact on actual deci- -ence symbols have their basis on the 237 internal psychological make-up of the Court. but their manip- ulation seems to be possible by outside events. Hence. the Court is clearly an “open system.“ Authorities which sup- port this view are many. (See Schubert. unpublished. pp. h. 9; Kelly and Harbison. 1963. p. 609). Arnold Paul (1960. especially p. 76) presents an interpretation of the pre- White Court period which explains most of the Court's action in terms of external political influences. To further test this hypothesis. the corresponding pairs of scales in the two periods may be compared as to the ranks of the seven Justices which were on the Court for both periods. This may also serve as a check on the valid- ity of the scales. Hence. hopefully the seven Justices should show the identical rank on each corresponding scale on the first period scale as on the second. The Criminal 23; Process (h) scales for the first period. for example. should show that the seven Justices rank the same as they. do on the second period scale. after excluding the Justices who served in only one period.20 The pairs of scales that were compared totaled #2. Of these only five showed shifts of one rank or less. (See Appendix IX.) The correlations (tau) and significances between pairs were calculated. 20The seven Justices who served in both periods were Holmes. Pitney. White. McReynolds. Day. Van Devanter. and McKenna. 238 irs did not correlate significantly. correlate above the .068 significance level. aspect scales. seven correlated at a signif- worse than .360 significance. two at .191. lly) at a .119 significance level (See Table 3 above rank differences may have been due of definition of exact ranks due to a small cases fitting within the category). Hence. relations and significances were correlated ct moment method) with the number of ”weak ich were in doubt due to lack of case votes ce not being on the Court for part of the They were also correlated with the sum of ash pair of scales and the product of tne in each pair of scales. None of these fac- significantly with the weakness of scale 3. except the C.R.‘s. The C.R. correlation ignificance level of .072.21 y conclude that the weakness of ranks was ause of the low scale intercorrelations.22 Pk 's were based on the votes of the seven Jus- the scales containing all Justices the cor- laticn with the product of the C.R.‘s was ficance level of .130. ions of total shifts by individual Justices of ”weak ranks” indicated that some of ts were due to this factor. correlating t at the .003 level. This would account for 239 Table 30.--Tau Correlations and Significance Levels between Pairs of Corresponding Scales for Ranks of Seven Justices Scalesa 2&2 Gen.Civ.Lib. .429 CL: Prop. .138 Criminal .390 Labor .751 WCFS .683 WCN .551 luth Due Prcc .h29 St. Tax .905 Contract .lh3 Commerce .200 Conservation .520 Land Claim .86? Corruption .333 Fiscal Claim .52# Fis. Power -.048 FRengon-ec .988 I.C.C. .52“ Rate Regn .52h Discrimin .810 Gen. L13. 0905 Lia. Ins. .900 Siggificance .119 .360 .119 .015 .015 .068 .119 .001 .386 .360 .068 .008 .191 .068 .500 .068 .068 .068 .005 .001 .001 Scales Egg Biggif. '27. Lla.R.R. .683 .015 28. Bankrupt .429 .119 29. Patent .667 .015 30. Antitrust .810 .005 31. Federal .71“ .015 32. FedsEccn. .600 .034 33. FedaNo-ec .h29 .119 3“. Com:StaX‘-.067 .500 35. CochoTax .200 .360 36. Tax D.P. .905 .001 3?. Cor Govt .751 .015 40. JPLoths .52“ .068 41. JP Lib .500 .068 42. JPConser -.143 .6lh #8. LlaRRFS .683 .015 #5. Fed.Rate .667 .015 46. St. Rate .390 .119 4?. Fed.Reg. .333 .191 #4. Cor: Bus. .988 .068 50. WorkComp .429 .119 51. Gov.Econ. .973 .015 1 scale with the period 2 scale. aSee Tables 1 and 2 above for full names of scales.' Each correlation represents the relationship of the period 2&0 nor was size of case content of scales. The low C.R.‘s of some of the scales did cause some of the low intercorrelations but not to a large extent.23 It only explained six per cent of the variance. Hence. a con- clusion may be Justified that the low intercorrelations were due to other reasons than violating proper methodological rules of scale construction. These could be due to changes in attitudes by the Judges or external influences on the Court. The possible explanations which could explain the shifts in ranks are (l) sociometric relationships resulting from old Justices leaving the Court and new Justices Joining it and (2) the influence of political party. as previously developed. prompted by the shift in national Progressivist leadership from the Republican party to the Democratic. First. possible sociometric relationships will be examined. Phi correlations using the Justices' votes on the cases give several high correlations between Justices. Positive relationships are: Holmes with Brandeis (.020). Harlan with Day (.h39). and Clarke with Brandeis (.307). about 20 per cent of his shifts in rank. It indicated that he was more conservative in the first period than his ranks would show. 23Seven of the 81Xteen "bad” scales were residual in character. That is they contained cases with a variety of issues lumped together. Four of them were split into com- ponent scales which greatly improved their reproduceability ' and pairwise intercorrelation. See Chapter 2 above. in Two _ 2&1 Negative relationships are McReynolds with Brandeis (-.h37) and McReynolds with Clarke (-.hlo). Harlan was only on this Court for a year. so his relationship with Day will be neglected. According to Rokeach (1968) there are connections between social relationships and opinions. Hence. if Jus- tices are positive reference symbols they will influence one another's opinions (or attitudes) and hence voting behavior. On the other hand. negative reference symbols might cause negative reactions to the attitude positions of others.2u McReynolds reputedly hated Clarke and Brandeis (Early. 1950) and this might have pushed him into taking positions con- trary to their positions. Likewise Brandeis might have influenced Holmes and Clarke into taking a more liberal position than they might otherwise have taken. Brandeis and Holmes had been lifelong friends (Mason. 19#6. p. 57) and this relationship might have influenced Holmes toward his more liberal position (ibid.. p. 571). But a further. more rational. explanation is possible. Brandeis was noted for the use of sociological data in demonstrating the reasonableness and desirability of govern- mental regulations and actions dealing with social problems. the "Brandeis brief.” It has been argued that before 21"This is more definitely articulated in congruity theory. See Osgood and Tannenbaum. 1955. Other attitude theories support this model. See Insko. 1967. M ”I 2#2 Brandeis. the Court lived in an unreal world without knowb ledge of the great social problems caused by the rapid industrialization and urbanization of the nation. With the information supplied by the Brandeis type of brief. the Court for the first time ”breathed the air of reality" (Warren. 1926. p. 798. quoting Frankfurter). It is clear that Brandeis continued this type of research while on the Court and gave other Justices and his written opinions the benefit of such research (Mason. 1906). Hence. Brandeis might have become the White Court's conduit to the world of reality. cpening their eyes to contemporary social problems. While Brandeis might have influenced many Justices. he would have particularly influenced Holmes.25 Holmes com- bined a healthy respect for sociological facts in making his decisions with a reluctance to research and discover them (Howe. 1961. 1957. 1963: Lerner. 1954: Frankfurter. 1961). Naturally. it would be ideal to let Brandeis investigate the facts so that Holmes could benefit from them and decide cases in accordance with them. Consequently the influence of Brandeis. Clarke. and Hughes (a possible prestigious reference source for the Republicans) on the seven Justices was examined to see if their influence accounted for some of their rank shifts. 2S'l‘aft complained that Brandeis had such control over Holmes that this situation gave Brandeis two votes instead of one. Brandeis also had an influence on Taft when he Joined the Court. Pringle. 1939. pp. 969-970. 2H3 The scale of ranks was considered as similar to a Likert scale. An extreme rank might indicate extreme intens- ity of opinion. A large difference in ranks between two Justices would indicate a large difference in position. For favorable reference sources. the difference in ranks would decrease: that is the individual would shift toward the favored reference source. For unfavorable reference sources the difference in ranks would increase. A source with an extreme rank would exert more influence on a Justice's attitude than a less extreme rank. (See Osgood and Tannen- baum. 19558 Insko. 1967.) An index of the extremity of the ranks of Brandeis was correlated with the seven Judges' shifts in position. Clarke's and Hughes' extremity of ranks were likewise tested. If Brandeis' rank was 1 for a scale he was given the most extreme rank and so forth. The ranks of these three Justices were almost all more liberal than the average for the Court. Table 31 shows that indeed Brandeis influenced‘Holmes~ and Day to shift in a liberal direction but had a negative influence on Republican HoKenna and Democrat McReynolds who disliked him.26 Furthermore. Clarke was a negative refer- ence source to McReynolds and White but had a positive liberalizing influence on McKenna. The former may have been repelled by Clarke's liberal position whereas HcKenna. 26Possibly because he was Jewish. Early. 1954. I 0" inf-fl I u I -5...‘ g Table fil,--Sociometrig influences cg Justices' Rank Shifts Judge Influ- enced Holmes Day McReynolds McKenna HoKenna McReynolds White McKenna Pitney Refer- ence Source Brandeis Brandeis Brandeis Brandeis Clarke Clarke Clarke Hughes Hughes 241. Direc- Direc- Tau tion of tion Correla- Refegggpg Influgnced tic; Positive Liberal .278 Positive Liberal .398 Negative Conservative -.217 Negative Conservative -.288 Positive Liberal .512 Negative Conservative -.389 Negative Conservative -.280 Positive Liberal .268 Positive Liberal .209 Signif- icance Level .039 .005 .102 .034 .000 .009 .038 .045 .095 similarly an anti-prohibiticnist and son of an Irish immi- grant. may have found common ground with Clarke. Furthermore. Hughes had influenced fellow Republicans hoKenna and Pitney positively in a liberal direction in the first period while he was on the Court. Other evidence validates the finding that Brandeis profoundly influenced Holmes after he Joined the Court including the high phi correlation and high loadings on the same factor on Q-analyses. Hence. when we examine party influences. Holmes is placed with the Democrats since (1) he was influenced by Brandeis. (2) he was purely a nominal Republican. and (3) ' an". A" F ‘I.. 245 previous evidence above (Table 29) showed that he behaved like the Democrats. A breakdown of rank shifts was made between the two partisan groups: (1) Republicans Pitney. van Devanter. McKenna. and Day. and (2) independent Holmes and Democrats White and McReynolds. This division resulted in a product moment correlation of .147 between “party" and rank shifts at a highly significant level of .008. Clearly the Repub- lican group shifted negatively in a conservative direction and the other group shifted positively in a liberal direc- tion in the second period. Thus rank shifts are explained by these two factors. (1) sociometric influences and (2) political party. as our hypothesis suggested. The rank shifts of the Justices are given as follows: Holmes shifts in a liberal direction more than any other Justice except White. He shifts to liberalism on 54 per cent of the scales and shifts conservatively on 20 per cent.27 On total rank shifts he shifts 81 per cent in a liberal direction and only 19 per cent conservatively. -His conservative shifts are largely associated with Darwinism. White also shifts towards liberalism on 54 per cent of the scales and toward conservatism on 20 per cent. 27See Chapter 2 above for the definition of conserva- tive and liberal. ~ ' M... t." ‘1 246 fts 81 per cent of his total rank shift in a \n. does not shift very much but he shifts con- per cent) more than he shifts to liberalism His total rank shifts are 82 per cent con- er. He does not shift on Liberal National- to liberalism (41 per cent) more than to per cent). Pitney does not shift very much to liberalism (23 per cent) than to conser- ent). van Devanter shifts more to conser- ent) than to liberalism (27 per cent). ost radically towards conservatism (54 per es towards liberalism (27 per cent). Both vely largely on Liberal Nationalism. but omes more anti-states' rights and pro- nt. McKenna becomes more states' rights e favorable to Libertarianism in the second nder the influence of Clarke who ranks n these issues.' have seen that two factors upset the notion a stable closed system: external political sociometric relationships. Furthermore. to shift positions on attitudes for undis- which may further question the hypothesis of f attitudes over time. 247 The attitude structure of the two periods studies are quite similar but differences can be attributed to the change in party control of the national government and the Progres- sivist movement. Further. a growing polarization of Court opinion along liberal-conservative lines occurs along with the discarding of outmoded concepts such as Federalism. Judicial Power issues. and Commerce Power other than in the above ideological context. Party and Progressivism were clearly the dominant ideological forces on the Court. Next we shall examine the values and ideologies which shaped the White Court's attitude structure. CHAPTER 6 IDEOLOGIES ON THE WHITE COURT This chapter will describe the general attitude struc- ture of the Court and its relationship to values and ideol- ogy. The influence of these ideologies on the Court decision making will then be discussed. Chapter 7 will examine the value systems of the individual Justices. Figure 19 gives a graphical representation of the atti- tude structure of the Court for the entire period. 1910-1920. It is based primarily on the factor analyses of the whole period and the results of the preceding three chapters. The attitudes and attitude systems are based on Tables 20 and 21 (primarily the former). Several lower-level attitude sys- tems are scales composed of two or more subcomponent atti- tudes such as Corruption (17). Commerce (13). Spgpe Taxation (ll). Fedgpalism (31). Rape Regplation (23). and Judicial Power. The higher level attitude systems are based on seven factors. However. Federalism is seen to be composed of two 1Not shown is that Bankru to (28). General Civil Liberties (2). and liability also are lower level attitude systems composed of component scales. 4 248 249 VALUES OR IDEOLOGY VALUE SYSTEIB ATTITUDE SYSTEPB ATTTI‘UDE mom qwgm H woe gem on assessed wager—dom capes. maceammnsms 332345 _. Shamans: 55 “was? 35% — C / nexus 333 g r. inseam 2.: 5335 a . a 1.. e \ _ , 3...»; p a p _ 7 as .Qeseemeeeeess Beeeesseeese sees . eases a fiancee Hw.IIEmemHoE\ on. 5.3958. Why then did Progressivism loom larger in the second period as an issue polarizing the Court? The decrease of Federalism as a separate issue accounted for part of this. However. previous to the appointment of Clarke and Brandeis. there may have been no effective core of support for the Progressivist position. Hence. other issues gained in rela- tive importance. Brandeis and Clarke. when they Joined the Court. were the most extreme Justices favoring Progressivism (out of all 13 Justices on the Court for the full 1910-1920 period). They supplied an extreme left core of support for Progressivism which Pitney and Holmes Joined.23 Hence. a large bloc of support for Progressivism and the equality value was formed. This bloc of support succeeded in polar- izing the Court on the issues involving Progressivism and equality. Finally. it may be asked why the value of equality. if part of the Democratic ideology. did not show any relation- ship to party. A traditional Democratic laissez-fairezu and pro-liberty attitude is one possibility. Two other hypothe- ses suggest themselves. host of the Democratic Justices had received appoint- ments from Republicans. This casts doubt on a conclusion 23Hughes. Pitney. and Holmes seemed only lukewarn in their support of Progressivism in the 1910-1915 period. This is based on a comparison of the maJority opinions which they voted for in the first period with maJority opinions in the 1916-1920 period. 2l"'Laissez-faire correlates .29 with party in the 1910- 1920 period. 278 that they were typical of the Democratic party and hence adhered to a typical Democratic ideology. Indeed. it is more likely that they were quite like Republicans in philosophy. This is especially true with appointments by a President like Taft. He carefully considered the philosophies of his appointees (McHargue in Murphy and Pritchett. 1961. pp. 83- 92). Moreover. once on the Court. these Justices may have felt more loyalty to their benefactor than to their party.25 Lamar and Lurton were appointed to the Court by Taft. McReynolds received his initial appointment to the Justice Department from Republicans and White was appointed Chief Justice by Taft. A further possibility is that a party ideology arises out of competition for office. If no interparty competition occurs. no division of politicians along ideological lines can occur. Thus the one-party South would produce Democrats of all ideological stripes including a conservative wing which would be Republican if it had a chance for success in obtaining office under that party. Tennessee. Georgia. and Louisiana produced Lurton. McReynolds. Lamar. and White who thus might not be true Democratic ideologists. Only in the North. then. are we likely to find persons who adhere to their party's ideology. 25For findings supporting these suggestions on Judi- cial politics see Nagel. 1964. Constant socializing by Taft among the Supreme Court Justices lends credibility to the idea that he intended to exert this influence after his appointments. See Lamar. 1926. 279 rue that some issues. particularly those influ- Civil War. are party issues for both Northern Democrats. These involve liberty. civil rights. ights. The general welfare versus special ue would also prompt a non-industrial South to interests special privileges. But on equality Judges might have been atypical in attitude party divisions. this hypothesis the attitude scale ranks for period were correlated with the party vari- ng the Southern Justices (who had all received from Republicans). It did not show significant between party and Liberal Nationalism nor Dar- ver. party did correlate significantly (at level of .08) with six of the eight variables ressivism. The average correlation of all eight party. In addition. party correlated .44 with gpppg (46) and .26 with Antitrust (30). The of party with the other attitude systems is. cth Liberal Nationalism and Darwinism involved powers in achieving equality. a conclusion able 24 above. The variable measuring associa- gressivism showed only a correlation of .35 with t Southerners. probably not large enough to con- results of this test. This Progressivism vari- c greater association with State Progressivism y (without Southerners). 280 seems warranted that omitting the Southern Justices (appointed to office by Republicans) shows that party indeed is associated with the equality value but that this associa- tion is influenced and weakened by the states' rights value. Progpessivism As Table 20 shows. Progressivism involves both work- men's compensation variables (8 and 9). Elli; Rights (15). all federal regulations (20. 21). the I,C,CII (22). all rate regulation variables (23. 45. 46). business discrimination and antitrust action (24. 25). examination of the books of corporations (43). state taxation (11. 34. 36). and state regulation of business (12. 13. 35). All except 911i; Rights and Fedgral Rggplation: Mpg-economic (20) involve governmental regulation of business. Marginally related to Progressivism are Conservation (l4). ggpg Claims (16). and corruption (17. 37. 44). Of these only Corruption.ip Government (37) does not include governmental regulation of business. Furthermore. this attitude system is exclusive. There are no variables that involve direct governmental regulation of business which gp_ppp,load on this attitude system. Some variables involving private suits between individuals and businesses do not load on this attitude sys- tem. but they do not involve direct government regulation. Hence. the Progressivist ideology would seem to sup- port governmental regulation and power. Its antithesis would oppose such power. favoring a laissez-fairs ideology. 281 Progressivism supports measures to bring equality. Its antithesis would oppose equality. Progressivism seems anti- business. Its antithesis would be pro-business. The equality concept is implicit in the Civil Rights variable (15) favoring more equality for Negroes. Federal Regplations: Npp-economic (20) would involve a pro-government value. It is also tied in with the moralist vein of the Puritan ethic27 in Progressivist thought. since it involves the regulation of liquor. prostitution. and drug addiction. Similarly the corruption variables (17. 37. 44) involve a moral outlook. Conservation (14) and Land Claims (16) involve a com- mon well-known issue of the Progressives: business exploita- tion of the public domain. Lastly. some association exists between Progressivismaxi Aliens (6). Particularly in the 1910-1915 period which would reinforce conclusions that the Progressives were nativist- oriented and anti-immigrant (Grimes. 1967: Hofstadter. 1955a). Table 23 in Chapter 5 above shows the relationships of the Progressivism attitude systems with other attitude sys- tems. The combined Progressivism attitude system (or ideol- ogy) correlated highly with Anti-Darwinism (a tau of .53). General Welfare (.50). and Libertarianism (.45). It 27See Grimes. 1967. The moral values of temperance. restraint. chastity. and honesty seem to be central to this ethic. 282 correlated negatively with Laissez-faire (-.35). Hence. a relationship of Progressivism with certain values of the other attitude systems can be discerned. The correlations then may be accounted for by the likelihood that correlated attitude systems involve the same values. Progressivism is pro-government since it negatively correlated with Laissez- faire. It also contains equality as Anti-Darwinism and Libertarianism contain equality as part of their content. Furthermore. Progressivism seems to be related to the Gen- eral Welfare concept of value. The above components of Progressivism are easily sup- ported by referenccs to its theoreticians and historical studies of political thought. Herbert Croly (1963) in articulating Progressivist thought argued for equality and the general welfare as goals (or values) of the movement. He particularly emphasized the active use of government to obtain these goals arguing that democratic officials must be given the power to govern effectively. Others recognized this pro-governmental aspect of Pro- gressivism which.cut across party lines (Hofstadter. 1955a: I<' T LN GW+——-Lz JP LIB FED Day LN JP 4 GI” SP :com FITD L2. :2: LIB 300 Second Perigg Tf‘”fi“\ "‘° L cw / LZ LIB HFED DAR 18 SP #6»! Lz -——-+ JP FED LN. 2:": DAR FED :Lz LN .__.""""JP +—- cw DAR:SP LIB FED ::=JP+———LIB cw :33? D Z DAR LN LIB :;=”‘—LN 4———LZ ow :SP FED Figure 21.--Pattern Analysis of Judges' Individual Attitude Systems for Each Period of White Court a... 301 Fi e 2 Co t' First Period Second Period Van Devanter Gw+—— LN LN—o GwzFED CO —.._-: D 813;:JP LIB :=£. SP JP LZ DAR,—__-‘*LIB LZ McKenna LIB;:‘:JP LN =JP GW f‘><' DAR;£LZ COM SP «— D \ f DAR;-_‘LZ FED,,-::Gw LIB LN :29? Hughes Brandeis FED \ LN FED -—‘ DAB LZ corn/3m J ><' 1; SPfiLIB LZ::: GW __.L JP LN‘__ JP Lamar Clarke cw ._.-* FED LIB -—‘.,_..FED J JP 1 § cw LN—e P DAR P DAR—'2 LIBo—LZ;:‘.COM \LN 11.? JP First Period Lurton Harlan LIB4——-JP cw —-—+SP " 1; / \FED LN -——+Gw-——>LIB :2:an \LZ +— OM a} COM .___.~—-‘JP LN DAR SP LZ 302 Figure 2;_(cont'd.) LN = Liberal Nationalism JP I Judicial Power SP = State Progressivism cw = General Welfare LIB = Libertarianism LZ = Laissez-faire FED = Federalism DAR = Darwinism COM = Commerce Power =2 Highest correlation for bath attitude systems -—+ = High correlation between attitude systems, .40 or more 303 Table 34.-~Rank Order of values in Individual Judges' Value ENstem for Separate Periods of the Court and for the Whole feriod. Retaining Original Direction of Values in Value System First Period :11 O 1...; B (D 0) Democracy Efficiency Liberty States' Rights Anti-equality Pro-government General Welfare Pitney Equality Anti-liberty Anti-democracy General Welfare States' Rights Pro-government Efficiency VO‘Ul¢\A)Nl-' a e o o o waxmzmmi-I § ite Anti-equality Democracy Efficiency Nationalism Anti-liberty Mti'Gen s We]. 0 Pro-government McReynolds 1. Democracy 2.‘Anti-equality \JOWR#NJPOPJ 3. Efficiency 4. States' Rights 5. Anti-liberty 6. Anti-government 7. General Welfare Day 1. Anti-democracy 2. Equality 3. General Welfare 4. Nationalism 5 . Anti-government 6. Liberty 7. Efficiency Second Period \10\U'\+?UNH \IQMNNH \‘lChUtC'UNl-J \imkn‘P-‘UNH Efficiency Democracy. Pro-government Equality Liberty States' Rights General Welfare Equality Anti-liberty Anti-democracy Pro-government General Welfare States' Rights Efficiency Anti-equality Efficiency Liberty Democracy General Welfare Pro-government Nationalism Anti-equality Anti-government Anti-Gen. Wel. Efficiency States' Rights Anti-liberty Democracy Equality Nationalism Democracy General Welfare Anti-government Anti-liberty Efficiency Whole Period \IQMPWNH \IO‘KAPMJNH Efficiency Democracy Equality Pro-government Liberty States' Rights General Welfare Equality Anti-liberty Anti-democracy Pro-government General Welfare States' Rights Efficiency Anti-equality Efficiency Democracy Nationalism Liberty Pro-government General Welfare Anti-equality Efficiency Anti-government Democracy States' Rights General Welfare Anti-liberty Equality Nationalism General Welfare Anti-government Liberty Democracy Efficiency 304 ’nt 'de) riod Second Period Whole Period >cracy 1. Nationalism l. Anti-democracy erty 2. Anti-equality 2. Nationalism .sm 2. Anti-Gen. Wel. 3. Anti-equality Llity . Anti-democracy 4. Anti-liberty :rnment 5. Anti-government 5. Anti-Gen. Wel. . Wel. 6. Anti-liberty 6. Anti-government :y 7. Efficiency 7. Efficiency . Wel. 1. Anti-Gen. Wel. 1. Anti-Gen. Wel. 2. Anti-equality 2. Nationalism Lsm a. Anti-liberty 3. Anti-government arnment . Nationalism 4. Anti-liberty arty 5. Anti-democracy 5. Democracy r 6. Anti-government 6. Equality :y 7. Efficiency 7. Efficiency '— xg Judges sat in only one period. . Wel. rnment lights 3y rnment Welfare Lsm acracy BY Lamar VOUJ—‘WNH Anti-democracy States' Rights Anti-equality Liberty Anti-government Anti-Gen. Wel. Efficiency Brandeis .1. 2. 3. 4. 5. 7. Equality Liberty Democracy General Welfare States' Rights Pro-government Efficiency Lurton 2. 3. 4. 5. 6 73 1. 2. 2: 5. 6. 7. I States' Rights Anti-equality Efficiency Democracy Liberty Anti-Gen. Wel. Anti-government slams General Welfare Equality Liberty Democracy States' Rights Pro-government Efficiency .fiiufiififiw l . .. ‘I 305 Table 35.-~Rank Order of Values in Individual Judges' Value Systems, All Values in Positive Direction Holmes 1. 3 VOM¢WN ONKAC‘WNHZ \Immi-TKJNH F‘f‘ ~o 2 mm PM.) O O Efficiency Democracy Equality Pro-government Liberty States' Rights General Welfare cRe nolds ____JL_.__. Efficiency Democracy States' Rights General Welfare Liberty Pro-government Equality cKenna Nationalism Democracy Equality Liberty Pro-government Efficiency General Welfare urton States' Rights Efficiency Democracy ‘Liberty Pro- government General Welfare Equality Harlan 2. 3. 4. 5. 6 7 Pro- government Equality General Welfare Li berty Nat ional ism Efficiency ‘ Democracy it e Equality Pro-government General Welfare States' Rights Democracy Liberty Efficiency me‘wal-‘E PIE Equality Nationalism General Welfare . Liberty Democracy . Pro-government Efficiency Hughes 1. Democracy 2. Equality . Liberty . Pro-government . States' Rights . Efficiency . General Welfare -vcnv\¢xn Brandeis l. Equality 2. Liberty 3. Democracy 4. General Welfare 5. States' Rights 6. Pro—government 7. Efficiency White I. Efficiency 2. Democracy Nationalism Liberty Pro-government . General Welfare Equality Van Dev ter 1. Nationalism Efficiency Pro-government . General Welfare Liberty Equality Democracy Lamar I. States' Rights . Liberty . General Welfare . Pro-government Efficiency . Equality ' . Democracy Clarke 1. General Welfare 2. Equality 3. Liberty . Democracy 5. States' Rights 6. Pro-government 7. Efficiency 306 social or political pressure which influenced the Judges' behavior in voting in certain caSes but left the attitudes and values unchanged. Changes may be due to real changes within the Judges' psychology actually shifting the impor- tance of certain attitudes and values within their value system. Due to their central nature, values should be stable, yet Judges by their very role should be open to the impact of new sociological and political information (Murphy, 1964; Murphy and Pritchett. 1961). Their great responsibility as the final arbitrator of our political system might well make them very introspective as to their value system. Rokeach (1968c) holds that changes in value systems are possible and likely to be due to inconsistent relation- ships between elements of a value-attitude system. Several influences that might cause change in value-systems are a drive toward consistency with self-esteem and a drive toward consistency with logic or reality. Specific causes of value-system change could be inconsistencies within the sys- tem and cognitions about significant others. Henca,a person may be exposed to information about states of inconsistency already existing within his value-system. He may receive new information from credible sources which is inconsistent with information already represented within his value- attitude system (Rokeach. 1968c, p. 22). The latter situa- tion might well describe the reasons for changes in attitudes discussed in Chapter 5: the influence of Brandeis on Holmes ' 307 and others, and the impact of a presidential party leader on a Judge's value-attitude system. Most of the minor variations in the rankings of the salience of attitude systems and values shown in Tables 33 and 34 and Figure 21 is probably due to the imprecision of our measures. Other, more striking changes may be due to the influences noted above. Holmes changes from period 1 to period 2 (Table 33) in that he was conservative (negative) on Liberal Nationalism and became liberal (positive) on that issue. Similarly. he changes from being anti-equality to pro-equality. He also becomes more strongly pro—government. Branieis' influence may account for this. It may also be noted that his value- system is inconsistent in the first period since he is strongly anti-equality in Liberal Nationalism but strongly pro-equality in State Progressivism. His high regard for democracy (anti-Judicial power) may account for the latter attitude but is not consistent with the former. Figure 21 shows that most of his positions on attitude systems involv- ing equality and states' rights cluster together. This suggests that equality is a central value,but in the first period it does not include Liberal Nationalism. His posi- tion on all of these attitude systems is quite similar. Ikeissez-faire, Darwinism, and Judicial Power attitude sys- 'tems are clearly distinctive and hence salient to Holmes. The is most liberal in both periods on Judicial Power, being 308 against the use of that power. He is most conservative on Darwinism in both periods. Table 35 shows that Holmes' most central value is efficiency (from Darwinism). Democracy is second, based on his opposition to Judicial power. Equality and pro-govern- ment are also important to him as is liberty. He favors state powers over federal but is less concerned about the value of states' rights. Pitney shows no maJor changes in his value-system between periods. In the second period. he appears slightly more pro-government and more favorable to Judicial power. These are. in the latter period, closely related to each other and to his pro-government position on Libertarianism. It suggests an element of authoritarianism in his psychol- ogy. The first peridd shows him to have six basic elements in his value-attitude system (Figure 21): Progressivism, states' rights. Judicial power. general welfare, anti- Ixarwinism. and anti-libertarianism. In the second period rue has three elements: the authoritarianism noted. State Progressivism, and Liberal Nationalism-anti-Darwinism. Pitney is most liberal on Darwinism with Liberal Nationalism a close second. He is most conservative on Libertarianism auui secondly for the use of Judicial power. He is also . most strongly against corruption in the first period. He is strongest on the Court for the creditor and the plaintiff in liability cases. 309 His highest value is equality with pro-government a close second. He alSo rates general welfare and states' rights highly. He is negative on democracy. liberty and efficiency, however. White is fairly stable in his value-system between the two periods. Darwinism becomes much more salient in the second period. however. He changes from conservative to liberal on Libertarianism and General Welfare. Since these are party-related issues. it is likely that he was so influenced by the new members of the Democratic party on the Court, Brandeis and Clarke who rate these values highly. He is most liberal in both periods on Libertarianism. He is also quite liberal on Judicial power in both periods. being against the use of that power. He is most conservative on Darwinism and State Progressivism. He is also strongly in favor of prohibition. White ranks efficiency highest on his value scale with democracy second. All Democrats rank democracy highly positively except Lamar. White also ranks nationalism high. ‘being the only Democrat to be against states' rights. He is also pro-liberty and pro—government. He ranks general wel- fare low and is strongly anti-equality. McReynolds is quite like White in his value system, except that McReynolds is strongly pro-states' rights. His nuaJor shift is that in the second period he becomes much less anti-Judicial power. It is most salient to him in the 310 first period and least salient in the second. Apparently he had discovered the utility of the Judicial power in curb- ing the excesses of Progressivist legislation. Figure 21 shows that in the first period McReynolds reacted similarly to Commerce, State Progressivism. General Welfare. and Laissez-faire. He saw the other attitude sys- tems as distinctive entities, however: he was most conser- vative on Liberal Nationalism (which strongly invoked his states' rights position). Then comes Darwinism. Judicial Power, Libertarianism, and Federalism. The second period shows a similar pattern except that Federalism, Judicial Power and Libertarianism form a cluster. He was most 11b— eral in both periods on Judicial Power and Federalism (favoring states' rights). He was also strongly anti- prohibition. McReynolds sees only efficiency. democracy, and states' rights as positive values (in that order). He is strongly opposed to equality and governmental power. He also rates liberty and general welfare low on his value scale. ‘ng shows a few inconsistencies between the first and the second period. He is liberal on Liberal Nationalism in the first period, but conservative in the second. The effect of the change in administrations from Republican to Democratic probably explains this. He is conservative on State Progressivism and Libertarianism in the first period but liberal in the second. The influence of Brandeis could 311 explain this change. Federalism becomes much more salient in the second period and Day becomes an extreme nationalist. However, Day is most extreme on Federalism in both periods. He is strongly pro-Judicial power in both periods. He is also quite liberal on Conservation (14), Land Claims (16), 931;; Liberties 91: Indians (5), and 9133; Rights (15). The inconsistencies make Day's value system difficult to analyze. He was considered a "weak" member of the Court by Taft (Pringle. 1939) and may have been particularly sus- ceptible to external influence. On his scale of values, he ranks equality highest and nationalism second. General Welfare, liberty and democracy are weak values for Day. He rates governmental power and efficiency lowest of all. being negative towards these val- ues. McKenna similarly shows marked inconsistencies in his reaction to the attitude systems. He changes from a strong liberal to a strong conservative on Liberal Nationalism. State Progressivism. and Judicial Power. This may be ac- counted for by the change in national administration and leadership of Progressivism from the Republicans to the Democrats. It could be accounted for by the deterioration of his mental facilities, as noted, or his growing senility. McKenna saw no difference between State Progressivism and Liberal Nationalism in either period of the White Court 312 (Figure 21). In the second period, he is consistently con- servative on all attitude systems except Darwinism. Laissez- faire, and General Welfare. The large cluster of attitude systems probably represents an anti-equality value. McKenna sees anti-Darwinism similar to Laissez-faire. Hence. his opposition to big business is related to his opposition to big government. He is most liberal on 91:11 Liberties 2: Indians (5) being the most liberal member of the Court on this issue. He is third on the Court in opposition to prohibition. He is lowest on the Court in opposition to corruption and also seems favorable to business interests in Conservation (l4) and ngg Claims (16). His changes between period one and period two are quite striking in 211;; Liberties: Property (3), Commerce (13), and Contract Clause (12). Where he appears to change from quite liberal to the most conserva- 8 tive member of the Court. He does remain consistently anti-railroad on Liability 9_f_ Railroads (27) in both periods. McKenna's highest value is nationalism. His other values are democracy, equality, liberty, and pro-government towards which he is slightly negative. He is strongly negative toward efficiency (Darwinism) and general welfare. van Devanter is consistently conservative and nation- alistic on all issues and values. He changes as does Day in 8His rank change is almost as striking in Rate Regula- tion (23). ' 313 the second period becoming more strongly conservative on Liberal Nationalism but more liberal on State Progressivism. He is also more liberal on Libertarianism. The partisan change in control of the national administration most likely accounts for his positions on Liberal Nationalism, and the influence of Brandeis may account for his relative liberal- ism on State Progressivism and Libertarianism. van Devanter also became more extremely nationalistic as did Day. Van Devanter's value system (from Figure 21) shows little distinctiveness on his reaction to most attitude systems ini the first period. He was moderately conservative on anti- equality on most issues but more strongly conservative on Judicial Power. State Progressivism, and Libertarianism. In the second period his reaction to the various attitude sys- tems is much more distinctive. He is most extreme on Feder- alism in this period. He is most liberal on Civil Rights (15). ' Van Devanter's strongest positive value is nationalism. He is moderately positive on efficiency. He is moderate on pro-government, general welfare, and liberty but is negative toward these values. He is strongly negative toward democ- racy and equality as a typical conservative. Hughes' value system (Figure 21) seems composed of four parts: (1) a system involving equality including the Progressivism variables plus Libertarianism, (2) a federalism system, (3) a system composed of pro-government and General 314 Welfare. and (4) anti-Judicial Power. Hughes' most liberal stance is on the Judicial Power variable. He is quite lib- eral on all civil liberty variables (1. 2, 3, 4. 5) includ- ing Civil Rights (15) except for the liberty variable involv- ing Aliens (6). He is highly pro-government on all Progres- sivism variables, both state and national. He seems highly moralistic as his biography and strongly religious upbring- ing would seem to confirm. He is strong in support of Prohibition (38) and the morality-involved Federal Regula- tion: Non-economic (20). He also strongly opposes Corrup- tion in Business (44) but not Corruption ig,Government (3?). Hughes ranks democracy highest and equality second. This is quite in line with his well-documented Progressivist philosophy (Pusey. 1951). Liberty ranks third on his value scale with pro-government fourth. States' rights ranks fifth. He also is more liberal on State Progressivism than Liberal Nationalism. He rates efficiency and general wel- fare negatively. Harlan is somewhat similar to Hughes. He ranks the pro-government value highest, with equality only second. General Welfare is third and liberty is only fourth. He is a nationalist as reputed (Paul, 1960). He does rank as a states' rights man in Federalism probably due to support of some of its general welfare variables. He is nationalistic «on Commerce Power, however and is clearly more favorable to lLiberal Nationalism than State Progressivism in Table 33. 315 He seems to rank efficiency and democracy negatively. He supports the use of Judicial power. His high rank on Judi- cial power is due to his support of the national Judicial power over the states. He is most liberal of all Justices in the first period on variables involving civil liberties including El!$i.§l£fl£§ (15) as his biographers will attest (Clarke. 1915). He is not sympathetic. however. to the claims of aliens. He is the second most liberal Justice on Liberal Nationalism and £222; (7). Lamar is. like Lurton. a strong states' rights man. He values liberty highly also. in second place. He is moderately negative to general welfare. pro-government.and efficiency. He is quite negative towards equality and democracy. He was reported to be disdainful towards the democratic process (Lamar. 1926). The structure of his value system is fairly simple. It has three components. One combines Commerce. Laissez- faire. Libertarianism and Darwinism. It seems to represent an anti-national. anti-government. and anti-big business sentiment. Hence. he is a true laissez-fairest opposing dangers to individual liberty from all sources. He is most liberal on the Libertarian. Commerce. and Darwinism vari- ables. His second component is anti-equality in which he opposes the general welfare and Progressivism. all related to equality. His third component includes the advocacy of 316 Judicial Power. presumably to protect liberty and states' rights values. He is most extreme on this issue. Lamar supports national income taxation but opposes state taxes. He is for prohibition. Lurton is similarly a states' rights laissez-fairest in the Jeffersonian tradition. He is the strongest states' rights man on the Court. He even supports State Progressiv- ism moderately although he seems to rank equality lowest of all seven values. He ranks efficiency second. being a Darwinist. Democracy ranks third and liberty fourth. He is slightly negative towards government and the general welfare. His value system is very simple and is composed of two elements. One is Liberal Nationalism. being extremely OOH! servative and anti-national power. He is most extreme on this issue. The other component consists of all the other attitude systems in which he is anti-equality and pro-states' rights. He is most liberal on Criminal Due Process (4). Fiscal Claims (18). Fiscal Powers (19). and ggghibitign (38). being against it. Brandeis is liberal on all attitude systems. His value system according to Figure 21 seems to have four com- ponents. (1) He is most extreme towards Liberal Nationalism and Judicial Power. opposing the latter. (2) He is less extreme on State Progressivism. (3) A component was found involving what was called Autonomy in Chapter 3. It 317 involves pro-states' rights. General Welfare. Libertarianism. and anti-Darwinism. In it he opposes bigness in and oppres- sion by government and business.T He also opposes aids to business interests in General Welfare. He is more moderate on these issues. (4) He is least liberal on Laissez-faire. perhaps retaining a Jeffersonian fear of governmental ac- tion. He is most extreme on‘Ziggg Amendment (1). §£gtg_ggg_ (11). Commerce (13). Federal Regulation: Economic (21). and Rate Regglation (23). He favored Prohibition (38). Brandeis supports equality strongest. His second value seems to be liberty. Democracy is third. His lack of consistency towards Judicial power drops the democracy vari- able lower on the scale. He accepts the use of Judicial power in support of liberal goals. Brandeis is also favor- able to general welfare (4th) and states' rights (5th). Pro-government is sixth. Brandeis is only slightly favor- able to governmental power. Since he is an anti-Darwinist. efficiency is last. However. Brandeis believed large cor- porations to be inefficient so that this value may not be accurately placed in his value system. Clarke's value system was quite similar to Brandeis'. His scale of values differs from Brandeis' scale principally in that Clarke seems to rank general welfare as his primary ‘value. He is neutral towards governmental power. being significantly less liberal on this issue than the others. ‘This suggests a laissez-faire element in his psychology 318 which may be related to his high value of liberty. Clarke is second to Brandeis in his support of the Progressivism variables but is first on Libertarianism. He is most extreme in support of labor-involved issues (7. 8. 9. 53). Contract Clause (12). Egg Process (10). federal taxes and claims (19. 18). Discrimination (24). and Antitrust (30). He is strongly anti-corruption (17. 37) but is against Prohibition (38). His views suggest support of lower-class interests and goals. Clarke's value system from Figure 21 seems simple. He is most liberal on the General Welfare component and least liberal on Laissez-faire-Judicial Power. He dislikes gov- ernmental power as much as he does Judicial power. The rest of the attitude systems form a third component. all related to equality. Comparisons between Egg Justices.--The relation of the value of liberty with the pro-government value might reveal which of the Justices oppose government power out of a value of individual liberty. This value system would typify the traditional laissez-faire libertarian. Lurton and Lamar fit this description. rating liberty positively and government negatively. (See Tables 34 and 35 and Figure 22.) Surpris- ingly. Clarke and Brandeis also fit this description some- what. These then include four of the six Democrats on the Court adding evidence that this is an ideological component of Democratic Libertarianism. Day moderately fits into this 319 LIEH§TARIANISH §?NKS L2— v j ‘g-W- '1’ I) ¢“§e* ‘qfin 5‘::;w «e n 7“)“0“ B :é‘Ir :40 E W :1 D C“ Q g,“ 5 . v Q "R 55“" :5 LU \fi‘egfi 1.. CONS RVATISM LA MK t! URN-'3 w‘: 0 ESEEH 4" Holmes Pitney Brandeis White McRey- nclds Devanter Roxanna Hughes Lamar Lurton Harlan Figure 22.-~Graph Comparing Banks of Attitude Systems Laissez- faire and Libertarianism for 13 Justices. 1910-1920 Period LIBERAL NATIONALI BANKS - ll 1 ‘ Zowssmmm ' ’ . NATIONALISM '1" MR- V w 2 HA 2 q LU I LA E > :7. in in 1'? I;- O t ‘1 z m 2 I; STATES" E a 2? RIGHTS ; B .l Figure 23.--Graph 1910-1920 Comparing Ranks of Attitude Systems State Progressivism and Liberal Nationalism for 13 Justices. 320 category being slightly pro-liberty and anti-government. Pitney alone is an authoritarian. being both pro-government and anti-liberty. The conservatives. Van Devanter. McReynolds. and McKenna are not laissez-fairists. They oppose government and liberty alike.9 They seem primarily anti-equality and Darwinist. Holmes. White. Hughes. and Harlan are both pro-government and pro-liberty. What values are associated with political party? Omitting Holmes. six Justices are Republicans and six are Democrats. States' rights most clearly differentiates Democrats from Republicans. The Democrats are five to one for states' rights. and the Republicans are four to two for nationalism. The Republican nationalists are more extreme on that value (averaging 2.2) than the states' rights Republicans are on states' rights (4.5). Holmes acts like a Democrat. being mildly pro-state. The pro-government value also divides Democrats from Republicans. The Democrats are anti-government (5.3) while the Republicans are pro-government (3.7).10 This is con- sistent with a pro-liberty laissez-fairs Democratic position. 9McKenna is. however. anti-government and slightly sympathetic to liberty. But his position in Figure 22 sug- gests that such a relationship is a weak one. loSignificant at better than the .02 level. 321 Holmes tends to the Democratic side. The Democrats value democracy higher (averaging 3.5) than Republicans (4.5)11 as predicted. Holmes acts Demo- cratic. Democrats also value liberty higher (3.3) than Republicans (4.3) as predicted. Holmes ranks liberty as low as Republicans do (5) but it is a strongly positive value for him. Only Harlan and Hughes among Republicans also value liberty positively. Republicans rank equality higher but Democrats rank general welfare higher (4.0 to 4.5). Southern Democrats consistently ranked equality lower than all other Judges (6.? to 3.1). 2 How did Progressives differ from non-Progressives? To determine this it must be decided which Judges are Progres- sives and whiCh are not. Clarke. Brandeis. and Hughes are generally accepted as Progressives without much dispute (Warner. 1959: Mason. 1946; Pusey. 1951). Most of the older Justices seem to be neither associated with the Progressivist movement nor sympathetic to the Progressivist variables except possibly Harlan. Furthermore. van Devanter seems untainted with sympathy to or association with Progressivism. Hence. van Devanter. White. McKenna. Lamar. and Lurton were considered clearly non-Progressives. On this basis certain differences toward values appear between Progressives and non-Progressives. Clearly llSignificant at the .08 level. 322 ‘ Progressives value equality significantly higher (1.7) than non-Progressives (5.8). as predicted. Clearly non-Progres- sives value efficiency more (3.2)than Progressives (6.7),12 that is they are largely Darwinists. Also Progressives value the concept of general welfare (4.0) more than non- . Progressives (5.2). This adds weight to the hypothesis that_ they were more considerate of the public interest (Winter. 1969: Banfield and Wilson. 1963). Progressives also valued Democracy higher as a group (2.7) than non-Progressives (4.2).13 This is consistent with the Progressive goal of revitalizing the democratic system and returning control of that system to the people (Hofstadter. 1955a). Progressives were not. however. more favorable to governmental power than non-Progressives(4.7 to 4.4). Figure 23 shows graphically how the Justices differ in their attitudes to state as compared to federal programs involving Progressivism. It adds to previous findings that Lurton. Lamar. and Clarke favor state power more than nation— al and hence are.states' righters while Harlan and White are‘ strong nationalists. Figure 24 shows the strong relationship between the values of liberty and democracy on one hand and states' 12Significant to the .004 level. 13This is not significant. however. with an error level of .15. This difference is not significant primarily because non-Progressivist Democrats also valued democracy highly. This is also true of the General Welfare value. 323 FEDERALISM-COMMEBOE POWER BANKS e z i—-—-—‘r-—‘ q. "than“. P g ,2. Romanhroamsm "R g 5731'6‘ ,_ V Rack?! 2 Authenuhamsh ; D Q '5 q - MK 5 LU Si 2:. W 3 ’7 HA $396+ 2: \ g 5- H0 9.4;... s. U) 43) $9330“) ‘5 V‘e‘b +- H0 9 z Manon/AL ; 2_ LaeERTARMNISM B _‘ C See Figure 22 for key to symbols for Judges' names. Figure 24.-~Graph Comparing Banks of Attitude Systems Federalism~Commerce Power with Libertarianism-Judicial Restraint for 13 Justices. 1910-1920 PROGRESSIVISM BAgKS :2 9 ' 21...... Mowwususm ' :rtrrnsomnw- C Lmsssz-ank' Incwsowmmsn 2 *- (srers’RwH‘rs) (States‘ mum B LIBERALS) 32 § LU 9': 5 _ Hu :5 3 IWR 8 m ‘ *‘LA. ‘ 3’: g “0 E 4 - HA 3:. MK 2 VJ NEH! M E. :2 3mm, m o m....3.’i’“" 3 \'/ LIBERALSJ d Figure 25.--Graph Comparing Banks of Attitude Systems Federalism-Commerce Power with Progressivism for 13 Justices. 1910-i920 324 rights on the other. The horizontal axis gives the ranks of. the Judges on the combined Federalism-Commerce Power attitude system. The vertical axis shows their ranks on a combined Libertarian-Judicial Restraint attitude system. Clearly most states' rights Judges are also pro-liberty and pro- democracy. Their ideology comports with Jeffersonianism and suggests that their political thought represents that heritage. These Justices include Clarke. Brandeis. Hughes. and Lamar. Nationalists view liberty and democracy values less dearly suggesting a Hamiltonian heritage (van Devanter. Day. McKenna. and White). The latter are Republicans except for White. whose father was an active Whig politician. All these logically would follow Hamiltonianism if indeed Repub- licanism and Whiggism represents the extension of that heritage. (See Croly. 1963; Peterson. 1960.) Pitney and McReynolds represent a states' rights authoritarianism. Their positions may not be as much ideo- logical as personal. Pitney's career was as a state Judge whose ideology was Republican. McReynolds'party and geo- graphic background may have inclined him towards states' rights but his personality suggests authoritarianism. (See Chapter 9 below.) Figure 25 compares the Justices' ranks on Federalism- Commerce Power with the Progressivism attitude system. Progressive Democrats rank both of these values highest and non-Progressive Republicans rank these values lowest with the other groups being more moderate. 325 It may be considered to relate states' rights with the equality value. Clarke. Brandeis. Pitney. and Hughes seem to follow the Jeffersonian-Jacksonian ideology in that they value both equality and states' rights highly, White Van Devanter. McKenna. and Day represent Hamiltonian nation- al conservatism. McReynolds. Lurton. and perhaps Lamar seem to represent individualism or laissez-fairism. They oppose efforts by government to impose equality on the social sys- tem and probably only accept state power because it "governs least" and hence “governs best." The lower right corner of the graph probably represents New Dealism and Harlan is closest to this position. He accepts and prefers national power when it is exerted in favor of equality. In Figure 26 Progressivism is compared with Libertari- anism in hopes of comparing the Judges who rank negatively and positively on equality and liberty. Rokeach (1968c) holds that those who value both liberty and equality highly are democrats. socialists. and humanitarians. This would describe Brandeis. Clarke. Harlan. Hughes. and Holmes. He would call rightists or conservatives those who value lib- erty but not equality. This includes Lamar and Lurton. This is a position I would prefer to label "laissez-faire.“- Spaeth (1966. p. 32) and Schubert (1965a. chap. 7: 1962) have constructed graphical representations of Judges' attitudinal positions on the Warren Court with criteria similar to the Figure 26 representation. Their 326 In this graph as in previous analyses. Progressivism ranks are considered to be equivalent to ranks on the value of equality and Libertarianism ranks are considered equivalent to ranks on the value of liberty. See Figure 22 for key to symbols for Judges' names. Low on Equality Low on Liberty. High on Low on Liberty Equality ,3 Collectivism or 1 12 ”R Authoritarianism (n I: L V! : 2. ”.1 < . 0:10 t MK 3 n' z _ : m D 2 A .2 8 w a: (L LU t .u: 6 - HO £9 4 A— LA Liberalism 4 ~ JJU Democracy Laissez-fairism or Humanism ~ Individualism B Low on Equality High on Equality 2* High on Liberty High on Liberty (: ~ HA l 112 A 110 l 6 61 l l; I 2L J __g PROGRESSIVISM RANKS Figure 26.--Graph Comparing.Attitude Systems Progressivism ‘with.Libertarianism for 13 Justices. 1910-1920 A A. « 1. re:- > 'I :F‘ ‘ A." - ‘INI ... Li "W i \ *uu 1‘“). "it 3: --8.. I .1, «ml .. 4 ‘A-l .“ “A w 327 one differ from the Rokeach model in that Spaeth call the low-equality. high-liberty positidn an t attitude. The low-equality. low-liberty posi- ed the conservative position by both. while 3 such a position as typical of Fascism. Rokeadh nigh-equality. loweliberty position as typical . Spaeth would call it authoritarianism and id call it collectivism. is closest to the authoritarian-collectivism nose who value both equality and liberty low; tives. include McReynolds. van Devanter. and one. To typify this position as Fascistic would be accurate as these Justices may well rank equality higher than a true Fascist would. . it is of interest that on both the White and 3 the bulk of the conservative Judges were found quality and lowbliberty position. This suggests a the line of conservative thought or personal- not a laissez-fairist position in the sence of quality only because to be pro-equality would o-government and hence anti-liberty position. ntrast. a position that opposes liberty as much a position valuing law and order highly. 2? compares Progressivism with Darwinism and. . would differentiate between the Wilson or non- ogressives and the Roosevelt or Darwinist HIL7L- f r ,3 $ MR Eli 5? Lu 3 4 H0 5? “+1.0“ c 8 '3 ‘N V\ m. Ho 0 ’— U ;f 0 k Republicans Ln Democrats 3 MK 4 .“f v E - “I D -g P U s boa {2,3 HA L J Figure 28.--Graph Comparing Factor Scores of Attitude Systems Judicial Restraint and Liberal Nationalism for 13 Justices. 1910-1915 f 329 Progressives. Holmes is the only Darwinist Progressive. demonstrating an affinity for the 1912 Theodore Roosevelt view (Mowry. 1958). Lamar and McKenna are anti-Darwinist. conservatives showing a true laissez-fairist conservatism which cpposes control of the economy by both government and big corporations. McReynolds. White. van Devanter. and perhaps Lurton are Darwinist conservatives. opposing equal- ity while supporting survival of the fittest. Lurton. it may be recalled. was also placed among the laissez-fairists in Figure 22. Figure 28 compares Liberal Nationalism with Judicial Restraint in the first period. It clearly shows a division of the partisans on the Court based on factor scores. A11 Democrats are anti-Judicial power and anti-Liberal National- ism. Republicans also generally cluster together. Pitney. McKenna. and Day are pro-Liberal Nationalism and pro- Judicial power. van Devanter differs by being slightly conservative on Liberal Nationalism while Hughes is clearly anti-Judicial power. Here Holmes' attitudes are quite simi- lar to the Democrats as previously noted. An examination has been made of the individual Judges' ‘values and how they are related to ideology. Clarke. linandeis. and Hughes would then seem to represent the ideol- cuny of Jeffersonianism-Jacksonianism. *They are also Pro- ;gressives. Lamar is more of‘a Jeffersonian laissez-fairist. Van Devanter. Day. McKenna. and White seem to be 330 Hamiltonians. McReynolds and Lurton seem to be extreme individualists. and Harlan seems to have been a "modern" liberal. Holmes appears to be foremost a Darwinist. He is in the middle of the Court on everything else but democracy. He is positive. however. toward the values of Jeffersonian- Jacksonianismx equality. democracy. liberty. and states' rights. He is probably best described as a Progressive of the New Nationalist variety. Pitney does not fit into any of the traditionalist molds of thought. He seems to react according to his life experiences and personality and might be termed an authori- tarian Progressive. The next chapters will examine the Judges' backgrounds enui examine causal influences on how party. class. and other factors accounted for the Judges' attitudes and ideology. CHAPTER 8 SOCIOLOGICAL AND POLITICAL INFLUENCES ON THE COURT This chapter will attempt to find certain influences in the background of the Justices which accounted for their attitudes and ideology. It will examine the influence of political party and class on various periods of the Supreme Court including the Warren Court. The influence of party will be examined in the light of the concept of political socialization. The transmission of party ideology through this process and the emergence of Progressivism through sociological influences will be examined. Other background influences will be examined for their impact on the atti- tudes involved in Supreme Court decision making. The influ- ence of symbolism on the Court will also be discussed. Since attitudes have been characterized as "learned sets or dispositions to respond” in a preferential manner. (Hollander and Hunt. 1963. p. 335: also see Rokeach. 1968. p. 112) a relevant question may be to inquire as to what life experiences shaped the attitudes of the Judges. Sev- eral studies have suggested generalizations as to what background variables may affect Judges' actions. .Political 331 332 party has been established as a dominant influence (Nagel. 1961; Ulmer and Schubert in Schubert. 196#. pp. 273-286; Schmidhauser. 1963. pp. h86-50h). Other studies suggest other variables. Nagel finds several sociological variables that influence attitudes without reaching a definite conclu- sion as to the underlying mechanism which ties underlying experiences or background to specific attitudes. He suggests that an identification of the Judgewith less privileged groups occurs to shape his behavior. In criminal cases. Nagel (1962a. 1962b) finds that Judges with lower status backgrounds (religion. ancestry. low-tuition colleges) con- sistently favor the criminal. Nagel (1961) also finds sig- nificant relationships between party and economic cases as well as criminal cases (but not free speech cases). Our data may be used to test certain of the Judges' characteristics against their attitudes. Political party may socialize the Judges towards cer- tain predispositions as may socioeconomic status. Many of Nagel's background variables mentioned above can be summa- rized in such a status variable. It may be assumed that economic status. religion. and ancestry all contribute to the status ranking of an individual. Such a variable must be subJective. however. and not precisely measurable. All Supreme Court Justices. moreover. have achieved a high status in life. However. since political socialization has been found to occur early in life. we may accept 333 Schmidhauser's advice (in Schubert. 196#. p. 208) that the socioeconomic status of the father is a good cue to the Judge's socioeconomic outlook. .A further cue to political socialization might logically be inferred from the father's political party1 as well as the Judge's lifelong association with a particular party. For example Frankfurter changed parties and thus might be considered an independent.2 Byron White's identification with the Democratic party might be weakened due to his father's association with the Republican party. Lastly. the community in which the Judge grew up might logically have an impact on his party identification. Justice Robert Jackson grew up in a heavily Republican com- munity (Schubert. 19650). while Warren grew up in a Progres- sivist Republican environment (Current Bio a h . 1953). The socioeconomic status ranking given Table 2h may be challenged on its subJectivity. It was made on the basis of the Judge's biographies. and took into account the economic status and occupational status of the father during the ‘ lFor findings that political party identification . occurs early in life see Campbell. 1964. chap. 6 and pp. 128- 123. For findings that party identification shapes ideology see ibid. chaps. 7. 8. and 9 and pp. 122-123. For findings that both class and party identification occur at an early age (school age) where the influence of the parent is great- est see Lane and Sears. 1964. pp. 19-22. For a description of family and other influences on party identification and political attitudes.~see ibid.. chaps. 3 and 4. The discus- sion of these influences generally comports with the discus- sion below. 2Schmidhauser's data bank lists him as Republican yet he was closely associated with F.D.R. 33“ early years of the Justice as well as religion (Jewish and Catholic religions were assumed to result in lower status). and immigrant status. Tau rank correlations were computed with the attitude scales. Democratic party identification and low status were given small number scale ranks. Ranking the White Court Judges 23 SES.--The SES rank- ing for the White Court Justices (Table 2b) is determined by the class and prestige of their fathers and is Justified as follows: McKenna was ranked lowest on SES (1) since his father was a baker. His father was the nearest to a manual worker of any Judge's father on the Court. In addition. his father was an Irish immigrant. a Catholic. and a migrant to a small California town. (See McDevitt. 19#6. p. 1b.) Joseph McKenna was orphaned. moreover. at age 15. Brandeis' (2) father was a Jewish immigrant from Prague. started out as a grocer and became a moderately wealthy grain merchant (Mason. 19#6). Clarke is ranked third. His father was also an Irish immigrant who became a lawyer and was active in local Demo- cratic politics (warner. 1959). Hughes (h) was the son of an immigrant Welshman who was described by Pusey (1951) as a poor immigrant who became a clergyman with a meagre income.3 Lurton's (5) father was a physician and clergyman. 3He made $600 annually. Later in 1866 this was raised to $1.200. Ibid. 335 His parents were Civil War refugees. Lurton was a private in the Confederate army (59 L.Ed. 1505). Van Devanter's (6) father was a successful small town Indiana lawyer (Pearson and Allen. 1937. p. 188). Day (7) represents a long line of prominent lawyers and Judges (Roelafs. 1950). His father was Chief Justice of the Ohio Supreme Court (National Cyclopedia 32:22). but seemed only moderately wealthy. Harlan's (8) father was a "distinguished and honored“ lawyer. a Whig Congressman. and a Kentucky secretary of state (56 L.Ed. 1273). Pitney's (9) father was also a prom- inent lawyer and Judge. who helped found a bank. He was also Vice Chancellor of New Jersey and was from a distin- guished family (National Cyclopedia 15:61). Lamar (10) was descended from a wealthy plantation owner. banker. and stockholder from whom he inherited a fortune. His father was a clergyman and author (Lamar. 1926. pp. 8-22). McReynolds (11) also came from an upper- class family of professional men who were close to the "plantation aristocracy" (Early. 195“. p. 6). His father. a surgeon. was moderately wealthy (ibid.. p. 28) and owned a plantation (Pearson and Allen. 193?. p. 2&0). White (12) was also from a distinguished and wealthy family. His grandfather was a Judge and his father was a ‘Whig governor of Louisiana and a Judge (National Cyclopedia 336 21:3). His father owned a large sugar plantation and was a prominent figure in Louisiana politics (Klinkhamer. 19h3. pp 0 5-1-1" ) 0 Holmes (13) was descended from a prominent New England aristocracy. His family was probably the most prominent among the White Court Judges. He was a grandson of a nationally known Massachusetts Judge and a historian. His father was an eminent physician. essayist. and poet. also nationally prominent (National Cyclopedia 27:1: Howe. 1957). Hence. based on immigrant status. religion. prestige. and wealth. the above ranking of the Judges seems tenable. Comparison 9;; §_E;§ and 29,391 with 2.33.222 Courts.--It may be of interest to examine the effect of class (SES) and party on attitudes in other periods of the Supreme Court. Some of the results of party has been given in Chapter 6 above. Ranks of Judges on E-scales (Business and Labor Cases) and C-scales (Civil Liberties) have been made by Schubert. Spaeth. Pritchett. and myself for previous periods of the Warren. Vinson. Stone. White. and Taney Courts.h “It is admitted that these scales have been defined somewhat differently by the persons who ranked the Judges. Furthermore. the case content of the scales varies somewhat from one Court to another. Nevertheless. a comparison of rankings of similar periods by different authorities shows little difference concerning these relationships. The ques- tion may be raised whether the case content is comparable ‘between different periods. However. if these gross scales 337 Biographical data was consulted to rank these Judges by party and SES. The results of these rankings are found in Appendix VI and the resulting relationships given in Table 36. One should note that SES ranks are less reliable as one goes back in time. As can be seen from Table 36. in every case but one. party is a better predictor of the Judges' attitudes toward economic issues. and SES a better predictor of attitudes toward civil liberty issues. The exception is the White Court where party seems significantly correlated with Liber- tarianism (at a .066 significance level). It may also be noted that post-New Deal Courts had Justices whose party correlates with class status whereas in the White and Tansy Courts no such relationship existed. This suggests that party ideology is influenced by members of the lower class moving into the Democratic party and that the party-economic liberalism relationship is a recent one. starting since World War I or the New Deal. The Taney Court relationship measure broad attitudinal dimensions such as economic liber- alism and civil libertarianism which are found amon other political elites (McCloskey in Crotty. et. al.. 196 . pp. 155-223: McRae. 1968) as well as among the voting public (Lane and Sears. 196#. pp. 62-63: Campbell. 1961+: Flanigan. 1968: Lipset. 1960: also see Schubert. 1965a). then compara- tively minor differences in case content should not sig- nificantly interfere with the measurement of these general attitudinal dimensions. The Tansy Court. however. is so remote in time as to :raise a real question as to the meaning of liberalism and Ilibertarianism in that time period. This is discussed else- *where. This may be true to a lesser extent of the White (Bourt and is also discussed in detail elsewhere. 338 Table 36.--Re1ationships between SES. Party. Economic. and Liberty attitudes on various Courts Tau Correlationsa Taney Court: Economic (18 6-1858) Civil Liberty White Court Economic (1910-1920) Libertarianism Stone Court Economic (l9bl-l946) Civil Liberty Vinson Court Economic : (19#6-1952) Civil Liberty Warren Court Economic (1958-1966) Civil Liberty 21 Justices Economic (19h1-1966) Civil Liberty sss 3751 .34 .2h .05 .22 .56 .37 .31 .91 .70 .h3 .42 -.62 -,09 .32 .51 .29 .60 .03 05“ .h6 .59 .23 Party vs SES -,§§"“' +.os .51 .44 .h8 .58 Kendall's Coefficient of concordance and probability levels of significance for w and for tau. Economic Equality vs Party Taney Court a (Schmidhauser Ranks) Taney.Court (Spaeth Ranks)a White Court (1916-1920: Labor cases only) Stone Court Vinson Court b Warren Court (53-57) Warren Court (58-66) 21 Justices (l9hl-l966) l9 Justices ranked by straight party membership (omit Stone. Roberts) 79$ .86 .68 .82 .76 .80 .87 .77 Signif. of w (.07) (.20) (.09) (.06) (.10) (.09) (.02) (.07) Signif. SELJEEL. .003 .01 .20 .02 .01 .02 .02 .002 .006 339 Igbiegjo (oont'd.i SES vs Civil Libertarianism Signif. Signif. w of w of tau Taney Court 775 (.II) . (Spaeth Ranks)a White Court .7h (.16) .16 (omitting Holmes) Stone Court .75 (.12) .03 Stone Court .86 (.06) .00h (true SES of Justice) Vinson Court .64 (.23) .18 Vinson Court .83 (.07) .03 (true SES of Justice) Warren Court .93- (.04) .001 21 Justices .76 (.06) .01 19 Justices .73 (.09) .05 (ranked by Schubert 1967. p. 28) omitting Stone. Roberts __ — __ — f 8See Appendix VI and VII for ranks and evidence in support of them. Note that the tau correlations which result from tied ranks (especially due to party) can have a maximum value of less than 1.0. bBased on Spaeth in Schubert (1963). p. 82. 340 of party with economic liberalism may be a spurious one or may reflect an alliance of industrial areas with the Whigs and agricultural areas with Democrats.5 An alternative eXplanation may be a temporary and accidental reversal of the long standing class and political relationships. which Lipset (1960. chap. 9) postulates. one that took place near the turn of the century. It may have involved infiltration and temporary control of the Democratic party by corporate wealth represented by Cleveland (who appointed White and McReynolds). White's attitudes may have been implanted in him by his politically active Whig father while McReynold's conservative background and corporate law experience may have proved more influential than his party's ideology. The Fuller Court (October 1908 and 1909 terms) shows no relationship between an E-scale and party. Neither does the White Court. The Taft and Hughes Courts (1921-1938) show only a ‘weak correlation between party and a scale involving rate- setting cases (tau of .23). However. the Court contained McReynolds and several Republican-appointed Democrats 5Ideology is tied more closely to party than to regional influences. Party is more of an influence than region (Northeast versus South) or parental agricultural occupation. A rural-urban division helps explain the Judges' attitudes as well. On the Taney Court. degree of ruralness of birthplace correlates .57 with attitude on the E-scale. :Farm-raised Judges opposed business interests. a fact which supports the above hypothesis. 3&1 (Butler. Sanford. and Cardozo). Hence. conservative Demo- crats may have been appointed who were quite unrepresenta- tive of their party and more like Republicans in ideology than their own party. ‘Nevertheless. Table 36 seems to lend evidence to a conclusion that economic liberalism involving government regulation was associated with the ideology of political party only since 1936. (See also the roll-call analyses of Chapter 6 and Table 32 above.) Table 36 shows that on the White Court labor union cases are related to party but at a non-significant level. They are related significantly. however. on the Warren Court (Appendix VIII). The content of the economic attitude ideology of the Democratic party may have changed. The Taney Court may involve anti-industrial (opposed to agri- cultural) interests. The Progressivist era Democrats may have been for private and group action to support economic equality (many opposed the idea of government taking sides). while today government action is the standby of the.Demo- cratic party. The Taney Court relationship of party to economic issues holds up whether one prefers the Spaeth (1966) rank- ing of the Justices or the Schmidhauser (1963) one on economic attitudes. However. in achieving the high correla- tion it was necessary to rank the Justices on Democratic party identification. Taney and Grier. for example. were 342 Federalists until the party disbanded. Being practical politicians. they threw in with the only remaining party. the Democratic. Hence. they should be considered at least partly Hamiltonian in outlook. Democrats who always were Democrats may be classified differently from them as I have done (see Appendices VI and VII). Considering the relationship of civil libertarian attitudes with SES. we see a weak relationship on the Taney Court. Doubtlessly sectional and party attitudes on slavery " distorted this issue. Table 36 indicates that party identi- fication was an influence (-.62 tau). The Whigs and Feder- alists were pro-libertarian. The slavery content of the civil liberty scale probably accounts for much of this. On the Stone and Vinson Courts. Justices Murphy and Rutledge are slightly out of line and Vinson is clearly out of line with the SES hypothesis. Here also we may surmise correctional factors. Most Judges are of high SES them- selves. but receive their outlook through parental identifi- cation (Katz in Hollander and Hunt. 1963. pp. 3ua-348; Lane .and Sears. 196#. pp. 20-21). Murphy and Rutledge. however. 'were only marginally middle c1ass--Murphy experienced :factory work personally while Rutledge was a lowly teacher and seems to have experienced periods of poverty. Thus. thirst hand experience with low status may be stronger than a txransmission process of experiencing it through parents. If we then rate these Justices lowest in SE8 (labeled “true 343 SES") we get highly significant correlations. Lastly. Vinson and Goldberg do not seem as libertarian as their status suggests. Both. however. lost their fathers before school age. Hence. if the Justices are given the underdog-sympathizing attitude by their father. perhaps by identifying with him. this process did not take place since their fathers had no opportunity to influence their attitude. One remaining corrective factor might be suggested by the deviations from the hypotheses. Reed. Minton. Vinson. and Catron were more conservative in civil liberties than their low SES status would indicate. while Roberts. Stewart. Warren. Harlan. and Holmes were more liberal. 'One explana- tion might be that the former are from rural backgrounds while the latter are from big city environments. A rural background has been identified as being related to narrow- ness of mind. homogeneity of population. and hence intoler- ance while urbanity contributes to broadness and tolerance through experience with new ideas and heterogeneous social groups. (For example. see Stouffer. 1955.) Urban or rural background could be a distorting factor in the above cases. Whether urban or rural background is related to the relative economic conservatism of Butler. Minton. and Jackson and the liberalism of Warren is less clear. It is conceivable that the individualist ideology and Jacksonian distaste for governmental "interference" operates here. Black and Rutledge do not show any such moderating effect on economic 34:: issues in spite of their rural backgrounds. Why do the individual's party and parental class identification play such a dominating influence in a maJor- ity of Supreme Court decisions? As Daniel Katz points out. the centrality of an attitude is related to how important it is to an individual's self-concept. These attitudes are probably "value expreSsive" and give clarity to ones self- image. The formation of the basic outlines of these atti- tudes takes place through the socialization process during the formative years through parental influence although later group membership modifies or reinforces them (Hollander and Hunt. 1963. pp. 3hh—348). A summary of the above findings is that political party 1dentification or association is a maJor determinant of attitudes on economic issues and background: SES is a maJor determinant of attitudes on civil liberty attitudes. Party may have an independent effect on libertarian atti— ‘tudes. SES has an indirect effect on economic issues per- haps by influencing the choice cf party. The economic attitude relationship seems to operate as ffiollows: political party reinforces secondary or primary ggroup influences on ideology. This occurs primarily through early (childhood) socialization. - It may be weakened by (1) parents of a different party than the individual chooses (Byron White and Edward White): (2) a community dominated by a (different party (Jackson). (3) associates which belong to 345 a different party. with such as a corporation lawyer may work (Jackson. Butler. McReynolds). (h) a change in allegi- ance or membership from one political party to another due to opportunism or other reasons (Frankfurter. Taney. Grier). and (5) original choice of political party for opportunistic reasons rather than ideology (Warren. Reed). (See Dawson and Prewitt. 1969.) The libertarian attitude seems related to SES through identification with underdog individuals or groups resulting from parental identification or personal life eXperiences.6 Whether this would still occur if the individual did not achieve spectacular upward mobility is not answered by this study. This phenomena seems also to be a process of group socialization with the family. especially the father. a prime molder or symbol of identification. An early death of the father seems to reduce this influence (Goldberg. Vinson. Byrnes). A maternal influence either may not occur through lack of identification or female conservatism may modify it. (See Lipset. 1960.) Rural influences may decrease a liber- tarian outlook while an urban background increases it. 6An alternative explanation may be suggested by a study of British middle and lower-class school children which :found middle-class children to show a more rigid value sys- ‘tem and an attitude that "infringement of rules required 'punishment" (Himmelweit in Hollander and Hunt. 1963. p. 134). iHence. a lower-class upbringing might influence Justices to take a less severe attitude toward criminal defendants and ‘to be lower in "dogmatism." Thus when the Judge himself is free of lower-class status strains (by being appointed to the (Court). no lower-class authoritarianism occurs. Instead he identifies with the underdog civil liberty claimant. 3h6 Further evidence in favor or the above proposition may be that prior to 1937 few really lower-class individuals were appointed to the Court and simultaneously very little support for libertarian safeguards in criminal cases was developed. Recently a higher proportion of Supreme Court Judges have been of lower SES than in the past. At the same time civil liberties have been rapidly expanded. This may neglect broader societal and educational trends. but does support a connection of the above. This may suggest that a political system such as ours needs an influx of officials with a ”common touch” with eXperience and insights into lower-class problems and outlooks--hence. a governing elite with "open boundaries" to enable it to cope with and react to the social environment and channel the aspirations of the masses . Finally. this relationship weakens the hypothesis that civil liberties are the inspiration and pillar of the upper class. as it does the idea that the lower classes are basic- ally authoritarian. A century of upper-class dominance of the Court (Schmidhauser. 1959) had seen few libertarian advances (prior to 19h0). Authoritarian tendencies in the lower class. as in all classes. may be related merely to economic insecurity. status strains. and poor mental health and may be decreased by alleviation of these strains and increasing education as perhaps has occurred in the cases of these Justices. 3h? Data for the relationship between SES and civil lib- erties is scant for the 1858-1909 and 1922-19hl periods and should be studied further. HoWever. on the White Court no such relationship occurs. However. it is of interest that party is related to civil liberties on the Fuller Court (tau of .31). on the White Court (a tau of .32). but not on the Taft-Hughes Court (which contained Republican-appointed Democrats). On the Warren Court SES seems related to civil liber- ties through a motive of equalizing Justice for all classes and to eliminate a gap between ”poor man's Justice" and 'tich man's Justice.” Scales which seem to measure this con- cept correlate particularly high with SES (see Leavitt. 1968. p. llSnA). A second possibility is that those of low SES possess an anti-government bias. This is one way to interpret the liberty-SE3 relationship as well as an SES- laissez-faire relationship present on the White Court (dis- cussed further below). These relationships might be related to a suspicion of governmental power and a feeling of power- lessness on the part of lower-class individuals. This anti- government concept is present in Jeffersonianism and in Inodern studies of lower-class attitudes (Lane and Sears. 196a). Although the liberty-SE8 relationship is not contin- ilous. it does appear with some consistency. It may well be ‘tied closely to a Jeffersonian-Democratic ideology which 'mz—w 3&8 emphasizes states' rights. equality. individualliberty. and laissez-fairs. These issues often involve federal power. they provide equality for underdog or disadvantaged elements of the community. they directly protect individual liberty. and they are consistent with an anti-government bias. The latter bias may preclude support of active governmental pro- grams for equality (Croly. 1963). but not equality under the law as in civil liberty cases. Hence. the Democratic party ideology seems to value both equality and liberty. However. since the Civil War the principal democratic value appeared to be liberty. but during the 1910-1936 period it became less important than equality. which now predominates as a Democratic value. The value of democracy (anti-Judicial power) seems also to have been a dominant Democratic value. On the White Court. SES seems only related to Darwin- ism. among the attitude systems. with a tau correlation of .36 (at a significance level of .Oh). SES correlates with (5) 9311; Liberties 2; Indians (.3u), (11) m 29; (.31). (25) General Liability (.27). (26) Liability gf_Insurance Companies (.29). (27) Liabilitz'gngailroads (.th). and (30) Antitrust (.35)._ What accounts for the Darwinism-SE8 relationship? It seems likely that the lower class would tend to reJect an ideology which holds that they. their friends. and family were biologically inferior as indicated by their lower-class 3&9 status. On the other hand. these Justices descended from upper-class families could easily accept an ideology that rationalizes their position in society by holding that they possess status and wealth because they are biologically superior and that society is benefited by keeping them in their superior status. Since SES is correlated with Darwinism alone among the attitude systems involving equality (not with Progressivism), it reinforces findings that Progressivism was primarily a middle-class movement. Hence. lower-class members of the Court seem to find no particular appeal in Progressivist programs. ‘Lower-class members support the claims of Indians. another underdog group. as well as opposing (38) Prohibition (tau of .h2) and supporting (bl) Judicial‘ggwgr in Liberal Outcomes (tau of .38). Thus it may be suggested that prohibition was a solution to social ills which the middle class sought to impose on the lower class with the active opposition of the lower class. The support of lower-class Justices of Judicial £2322 .ig Liberal Outcomes (#1) corresponds to a similar correla- tion on the Warren Court of Judicial activism in favor of liberal and libertarian aims with a tau of .70 (see Appendix VIII and Leavitt. 1968). A marginally significant correlation (.26 at a .11 level of significance) is found between SES and Laissez- faire on the White Court. This suggests a lack of trust 350 concerning governmental power implicit in Jeffersonianism‘ (Dumbauld. ed.. 1955) by the lower class. It might account for the lack of correlation between Progressivism and SES. It also might be related to a feeling of powerlessness found present in the lower class (Lane and Sears. 196“). and the knowledge that the upper classes have always had more success in controlling the government and shaping it to their benefit. This could account for the anti-government stance of lower-class Justices on civil liberties in various periods of the Court's history. A further consideration concerning our SES ranks on the White Court is that the ranks do not represent a broad spectrum of American classes. The lowest class parental influence. that on McKenna. was that of a baker who probably was above average in class in Nineteenth Century America. (The rest of the Judges had successful lawyers. merchants. clergy. and other professional men for fathers. The eight Judges from (2) Brandeis to (9) Harlan have only slightly different backgrounds. the four highest-class Justices seem to be from uniformly wealthy backgrounds. Hence. any class influences which might have developed may not have occurred due to the absence of any real distinguishable class dif-' ferences on the Court. Other Courts were more representa- tive of the various classes (see Appendix VII). and show relationships between class and civil liberties. 351 A 'chgg Sociological Influences 2g,£gg'flhi£g‘ggg§§.--A number of other possible influences on the Justices were con- sidered. These included geographical and urban background. age. life experiences. religion. party of appointment. and others. Biographical data were used to rank the Judges on these sociological variables and the rankings were then correlated (using tau) with the average ranks on the attitude systems as well as the individual attitude variables. The resulting ranks are found in Appendix X. Some of the more significant relationships are found in Table 37. Some twenty-two variables were thus constructed. Relationships between background variables and attitudinal variables were postulated as indicating some causal influence of the former on the latter.. Since the off-Court experiences of the Judges came first. it may be inferred that these experiences established a bias on certain issues on the White Court on ’which they made decisions. Identifying with certain peer groups or social groups. especially early in a person's life.' has been known to influence him to accept the attitudes of his group (Dawson and Prewitt. 1969). The relationship of party with the attitude_systems given in Table 37 has already been noted. The ”party .activism" Variable is the party variable given in Table 24 and measures the relative identification of the Judges with one party as opposed to the other maJor party. ‘As can be seen. Democrats are pro-Libertarianism. pro-states' rights. pro-JudiCial restraint. pro-general welfare. and tend to 352 Table 37.-~Corre1ations of Attitude Systems with Background _Variables State Bi th 1 Progres- Progres- Liberal . r p ace sivism sivism Nationalism North-South Continuum .35 .42 .35 East-West Continuum .38 .52 .23 Urban-Rural Continuum .35 .51 .27 Association with Progressivist Movement .56 .55 .49' Immigrant Status of Parents .46 .57 .38 Experience: State or Federal Official .38 .26 .31 Prestige of College Attended 3 .35 . .38 .33 Party Party Association with Appointed By Activism Wt Movanent Libertarianism . 3 .32 Federalism -.53 -.37 Judicial Restraint .40 .41 General Welfare .34 .18 .34 Laissez-faire .29 -.31 Socioeconomic Paternal The party variable Status Qpppgpp_ is Democratic party Darwinism .3 Laissez-faire .26 .40 Judicial 3 Experience Civil Liberties -. 5 Darwinism seems significantly related to living in the West. high socioeconomic status. high status religion. native-born parents. and a law professorship. All except the first indicates high status. The above correlations are tau rank correlations. Significance is roughly equivalent to the following: correlation of .27 is significant at the .10 level correlation of .34 is significant at the .05 level correlation of .47 is significant at the .01 level See Appendix X for Judges' ranks on background variables. 353 be Laissez-fairist in attitude. The Republicans take oppos- ing positions. The relative association cf the Justices with the Pro- gressivist movement (Table 24) has already been explained and. as expected. Progressives tended to support both Pro- gressivism attitude systems. In addition they support General Welfare and are pro-government according to the Laissez-faire attitude system. The causal connection of these relationships is obvious. If a Justice worked for Progressivism before he reached the Court. he would be expected to continue to support such programs on the Court. This may be considered to add validity to this method of causal inference from background variables. Other significant relationships are seen. Northern Judges tended to support Progressivism while Southerners opposed it. Eastern Judges supported it while Westerners opposed it. Urban Judges supported Progressivism while rural Judges opposed it. A further explanation of these relationships will be suggested later. It is worthy of note. Thowever. that the North. East. and urban areas were where the problems of industrialism and urbanization were most :acute. These problems. some authorities hold. helped bring aibout the Progressivist movement (Faulkner. 1931). Judges who were sons of immigrants also tended to sup- pxxrt Progressivism (tau of .46) and Libertarianism as well 354 (.34). They particularly supported (1) flippp Amendment freedoms(.48) and (7) £292; (.49). as well as (5) the rights of aliens at a low correlation (.22) of questionable significance (.16). The latter relationship is readily explained by an identification of some of the Judges with immigrants. The nativist Judges were naturally less sympa- thetic. Immigrants were quite active in forming unions and Socialist parties and were the defendants in many flippp Amendment and_§§ppr cases. Hence. either an identification with the defendants occurred or a class consciousness may have influenced some Judges to support lower-class liber- ties and aims. Nativists on the Court were by contrast unsympathetic. The lower status which the immigrant sons on the Court may have experienced may have influenced them to support the equality value implicit in Progressivism. a manifestation of class consciousness. 0n the other hand. perhaps these Judges may have been freer of the American bias against governmental intervention in favor of equality in contrast to the nativist Judges. Former state officials on the Court were more active in support of Progressivism than former federal officials. perhaps because their personal acquaintanceship with state Progressives influenced them to be more openminded to their jprograms. It is to be expected. moreover. that state offi- «cials would tend to support state Progressivist programs. 355 Graduates of higher prestige colleges also supported ProgreSsivism. again possibly because their college peer groups were more favorable to Progressivist ideas. It is of interest that on the 1958-1967 Warren Court the above relationships of urbanization. Eastern. and Southern influences with economic liberalism aretiissimilar to those on the White Court. Urban Justices on the Warren Court tended to be conservative while Southerners were more liberal. Darwinism seems related to several variables which probably measure the relative social status of the Judge. High status religion. high socioeconomic status. native- born parents. a law professorship all seem to influence Judges to support Darwinism while low status leads to oppo- sition to Darwinism. Living in the West was a pro-Darwinist influence. possibly because the more rugged life and more competitive life styles in the West made a Darwinist philos- ophy more appropriate (see McCloskey. 1951). Judges orphaned early in life showed a tendency to be anti-government on Laissez-faire. Since parental influence -is a prime factor in promoting respect for and trust in. government (Lane in Crotty. et. al.. 1966: Dawsonfand Prewitt. 1969). the absence of such an influence could encourage an anti-government bias. 0n the Warren Court orphaned Judges also tended to be anti-government in civil liberty categories. 356 Other relationships between background variables and attitudes were noted on the White Court. Judges with longer tenure on the Supreme Court were against State Progressivism. (a tau of -.3h), possibly since their off-Court experience predated the Progressivist movement. They were also opposed to (30) Antitrust action (-.3h).~ They were opposed to the General Welfare (-.37). They were pro-Darwinist (.3h), having demonstrated their ability to survive and reach high status. They were nationalistic (-.39) on Federalism as would be expected from being national Judges for so long. Also as might be expected, they opposed Judicial Restraint (—.25), having become accustomed to exercising the supreme Judicial power. Judges with longer Judicial experience on other courts also opposed Judicial Restraint (-.27) for perhaps the same reason, accepting the legitimacy of their own Judicial role. Law professors were. by contrast, for Judicial Restraint (.36) perhaps out of a deeper understanding of the proper Judicial role. State Judges. state officials, and graduates of high ‘prestige colleges tended alike to be pro-government on JLaissez-fairism. These attitudes are probably related to their support of Progressivism for the reasons mentioned' ‘previously. Classifying the Justices according to the President vflno appointed them gives some interesting results. The 357 Wilson appointees were all pro-states' rights while the Republican appointees were primarily nationalistic. The Wilson appointees were also pro-General Welfare. while the earlier appointees. McKenna. White. and Harlan were mostly anti-General Welfare. The Taft and Roosevelt appointees were moderate on this issue. Three of the Taft appointees were the most anti-Labor Justices. but Hughes and Lamar were exceptions to this generalization. Northern Judges tended to be slightly pro-national on (31 the Federalism variable (.25). Western Judges were also more nationalist than Easterners on the Federalism attitude system (.Wl), probably due to the need of the West for federal help in deve10ping the area. Judges living in rural areas tended to be pro-state (.31 with Federalism. .5“ with Commerce.[}3ip. while urban Judges were nationalistic. Rural life undoubtedly leads to a more parochial outlook than the cosmopolitan city. Rural dwellers. however, were :not found to be anti-civil liberty in contrast to the find- ing of Sprague (1968). Contrary to expectations. Judges who experienced more tilections to office were net favorable to Judicial Restraint. 131 fact they tended to oppose it (-.35). Attorney Generals were not significantly cpposed to civil liberties nor more snrpportive of antitrust prosecutions. Judges with the longest lower court Judicial eXperi- eruze were significantly anti-Civil Liberties (2) at a tau 358 correlation of -.u5. They may have become accustomed to a role of upholder of law and order on lower courts and were thus not sympathetic to liberty claims. In contrast older Judges supported (h) Criminal Due Process liberty claims (.3#) as did former law professors (.33). Northerners tended to be unsympathetic to (6) the liberty claims of aliens (.32). Those supporting First Amendment liberties (1) included those of higher status religions (.31), older Judges (.hs), and former state officers (.3h). Former Attorney Generals were opposed to such liberty claims. however (-.35). As would be expected on Civil Rights (15). Northerners supported Negro rights (.36) with Southerners opposed. State officers tended to support (in) Conservation (.39), (18) Federal Fiscal Claims (A6), and (19) Federal Fiscal Powers (.uu). Prohibition (38) seemed to be almost a unique variable. It was only weakly related to other attitude systems and most important background variables. Even the drinking habits of the Judges seemed only weakly related to it. For example McReynolds. a non-drinker, opposed it and Harlan, a drinker, supported it. Variables related to prohibition are as follows: Westerners were against it. Easterners for it. Southerners supported prohibition. but Northerners 359 tended to oppose it (.31). Wilson-appointed Judges opposed it. Judges who had faced election tended to favor it (.29). Judges with more years on the Court favored it (.31). and state officials favored it (.46). Rural Judges tended also to support prohibition (.30). which supports other findings that prohibition was most strongly supported by rural A dwellers (Crimes. 1967}. Religion as a factor on the Court does not show congruence with findings that prohibition was a Protestant causetibigL). Protestants on the Court are more anti-prohibition than Catholics and Jews. The above relationships must be taken with the acknow- ledgement that the sample is small (only 13 Judges). How- ever, correlations of about .3U are significant at the .05 level but those above .27 involve a .10 probability of being due to chance factors. Politiggl Socialization and Political Symbols.--Cen- tral to a person's attitude system are certain reference symbols around which political values and attitudes are arranged. These reference symbols may include political party. liberalism. laissez-fairs. or Progressivism. ‘The reference symbols are centrally located often because they may have been learned early in life, perhaps during child- hood. and hence form part of a person's basic self- identification. Only later in life when the individual gains more SOphisticated political knowledge and applies truese symbols to specific issues and situations does the 360 attitude system become filled in with specific values. atti- tudes and beliefs. (See Rokeach. 1968a. 1968c; Edelman, l96hg Dawson and Prewitt, 1969.) These reference symbols may well be the psychologist's and behavioralist's equivalent to the political philoso- pher's concept of ideology. (See Campbell, 196#.) Of these reference symbols. political party is the earliest and thus most influential shaper of attitudes. hav- ing been learned in childhood. It directs future changes in opinion. Class identification also occurs in these years. Issues and ideology become influences only later, during the teens (Dawson and Prewitt, 1969. pp. #8-57). Dawson and Prewitt (1969. p. 131) points out that ”reactions to specific political events and adJustments to political changes...group identifications and the general social and political values acquired during early socializing experiences." Political positions "on specific policy issues tend to be based upon identification with liberal, conservative, socialist. capitalist...and other political symbols.” Perhaps the most appropriate concept of ideology for our study, then, would be to consider it as a reference symbol. (See also Edelman, 1961}: Key, 196#. pp. 63-6le.) TTue liberal position or symbol (as conceived of in modern 'terwns) seems very weak as such a symbol in the 1860-1900 period. It consisted mainly ’of a vague anti-industrialism until the Populist movement emerged (Rossiter. 1962: Croly. . 361 1963: Peterson. 1960). Conservatism was, however, a.strong reference symbol, having appropriated much of the Jefferson- ian and democratic base of political thought (Rossiter. 19621 Hence, Populism and later Progressivism (borrowing much from Populism) emerged as reference symbols in the 188b-1912 period (see Faulkner, 1931, 1959; Hofstadter. 19553). Lastly, social Darwinism was formulated to bolster con- servative thought, being more appropriate than Laissez—faire as a rationale for the new corporate economic structure, and perhaps better Justifying the use by industry of govern- mental aid and support (Rossiter. 1962; Hofstadter. 1955b: McCloskey, 1951). Progressivism itself borrowed from various sources of political thought. From Jacksonianism and perhaps even the conservative creed it championed equality of opportunity (Croly, 1963). From Jeffersonianism and Jacksonianism as well as the general democratic creed it championed closer popular control over government in opposition to machine rule and corporate control (see Crimes, 196%, p. 102). The same line of thought supported its opposition to special interests using government for its own benefit, which was :further supported by Populism and Bryan Democracy. Hamil- tonianism gave to Progressivism an acceptance of positive guyvernmental intervention to support its aims and to its Liberal Nationalist proponents the use of the national gov- eruunent for such purposes (Croly, 1963). The religious V ‘ Illel. .t. ‘I 362 "social gospel" impetus probably provided from Protestant thought the moralistic fervor against corruption, drink, and immorality associated with poverty and corporate abuses as well as providing its strong humanistic bent. Progressivism was such a composite of political strains of thought that it seemed to arise as a radically new reference symbol or ideology eventhough it was offered as a movement to restore traditional values. Its "liberal” basis of thought had been dormant for so long and the other strands of thought were so transformed by new conditions that it seemsmore of a dis- continuity resulting from social change than a continuation of previous ideology. (See Hofstadter. 1955a; Faulkner, 1959.) Its continuity with present-day economic liberalism has been supported, however (Hofstadter. 1955a), and economk: liberalism is today the most potent of political symbols. (Campbell, l96u, chap. 8; Lane and Sears, 196#. pp. 62-63; Lipset, 1959.) Hence, Progressivism seemed to be the reference symbol in this period for what would now be called economic liber- alism. It probably shaped citizen reaction to political ' events Just as what is now known as "liberalism" does today. In fact it probably shaped modern liberalism after under- going certain transformations (accepting government as a positive force to favor depressed groups and accepting rurtionalism as a primary instrumental value). 363 Factors causing discontinuity of values are found to include complexity, heterogeneity, geographical and social . mobility and social change (Dawson and Prewitt, 1969, chap. 6). This finding suggests several hypotheses for the emerg- ence of the Progressivist and reformist movements of the 1890-1920 periods both on and off the Court as will be seen. (See also Rays in Chambers and Burnham, 1967, pp. 152-181.) .We note that Justices whose fathers were not native born are most friendly to labor and generally most favorable to Progressivist programs. This comports to historical findings that the influx of immigrants contributed a maJor motive force of labor and urban socialist movements . (Gusfield, 1968). -These persons were not steeped in the — Jacksonian and Jeffersonian democratic ideals whereby democ- racy and equality were closely associated with anti-govern- ment and anti-national ideals (Link and Catton, 1967). Hence, the change in our political outlook which took place in those years may have been an exogenous process in which .nonpnative values were introduced into our political demo- cratic culture. A line of political thought was developed 'which was not committed to Laissez-faire. Many of the erogressivist programs, moreover, were based on foreign social legislation (Faulkner, 1931, p. 332). Complexity, heterogeneity, and urbanization were more ctuxracteristic of the East than of the South and West. They were also more characteristic of urban areas than small town 36h or rural areas. This helps explain the finding that Eastern and urban Justices were more receptive to Progres- sivism (in general) as well as to Liberal Nationalism. The South, where more traditional values were pre- served (Early, 195h), was most conservative of all, clinging to the Jeffersonian laissez-fairs tradition. The effect of Western life on the Justices seems to bring a support of national government (as opposed to state) as well as a more 1aissez—faire-individualistic outlook. Better education brings a stronger sence of duty to participate in the political system, a greater sence of polit- ical efficacy and more political activity (Dawson and Prewitt, 1969). Since the growth of our public educational system was great in the period previous to the Progressive period (except in the South), it could have been a factor in facil- itating the growth of Progressivism. Progressivism was not restricted to party but cut across party lines (Mowry, 1958). This is supported by this study of White Court Justices. It may have been prompted by a.fear that something more radical would have occurred if the Progressivist programs were not adopted (Mowry, 1958, p. 219). It seems clear that Progressivism was a reaction to tflne social and economic evils brought about by the rapid iruiustrialization and urbanization of the nation, the immi- pmnant invasion of our cities, and business exploitation 365 (Faulkner, 1931; Lewis, 1937, pp. 233-239: see Chap. 2 above). Furthermore, inflation and the weakening of the status of the middle class also added to the growth or Progressivism (Swisher, 1954, pp. 529-530). Hence, control of these evils was particularly desired by Eastern and urban elements of the population (Kelly and Harbison. 1963, pp. 615-616). Consequently, Judges on the White Court from these areas were particularly strong in support of Progres- sivism. Most Judges, furthermore, as we have seen were either middle class or of middle-class professional parents (only McKenna, White, and Holmes might not fit this cate- gory). Hence, as their peers and network of acquaintances (significant others) became convinced of the desirability or necessity of Progressivist programs the Justices also supported a significant number of them (Swisher, 1954). They seemed to do so as a direct relation according to whether they themselves were associated with the Progressivist move- ‘ment, from urban and Eastern backgrounds, and involved in state government (where the Progressive programs were first implemented [Link and Catton, 1967, p. 73 ). (See Table 37.) The argument has been made that it was Theodore Roosevelt who awakened the Progressive movement by supplying tn: it publicity and moral fervor (Mowry, 1958). This would help explain why Republican Judges in the first period sup- port Progressivism variables to a much greater extent than do Democratic Judges . 366 Although Jeffersonianism was originally rooted in spiritual and humanitarian values, McCloskey (1951) argues that its values had been transformed by the late Nineteenth Century so that in the name of liberty it was used as a defense of economic laissez-fairism. In the Progressivist era this transvaluation of traditional American values became recognized and a quest for the traditional values was begun (McCloskey, 1951; Hofstadter. 1955a). The line of political thought from Jeffersonianism and Jacksonianism to Progressivism has been noted by authorities both from an analysis of the content of their ideas and values as well as a consideration of the people engaged in both movements. Populists included many Jacksonians and Jeffersonians (including Jefferson Davis). Progressivism later adopted‘ most of the Populist program. Many citizens who were part of the Jacksonian generation were active in Populism (Hofstadter. 1955a, p. 102). Hence, the direct effect of former ideological values is seen. Furthermore, the direct effect of the parental transmiSsion of values may be dis- cerned. Clarke's father was impressed by Jacksonianism (Warner, 1959). and hence passed it on to his son who applied it to the new conditions. Clarke thus became a Progressivist. The ideological appeal of Jacksonian equal- itarianism to immigrants as well as the Democratic party's political appeal for their support no doubt succeeded in 367 capturing immigrants and imbuing them with Jacksonian values. This may well explain why three of the four sons of immi- grants on the Court were Progressives as well as identified as Jeffersonian-Jacksonians in philosophy. Certain values of Jacksonianism and Jeffersonianism are also values of Progressivism as Chapter 7 has shown. Hence, equality, democracy, general welfare, and states' rights are all values of the former as well as Progressivism (as Chapters 6 and 7 have indicated). These values distin- guish Progressives from non-Progressives on the White Court and two-dimensional graphs place known Progressives in positions logically apprOpriate to Jacksonians.7 Further- more, except for states' rights these values were articu- lated as Progressivist goals (as well as Jacksonian ones). Progressivism was equalitarian, a value obtained from Jacksonianism. In the Jeffersonian-Jacksonian tradition, Progressivism was anti-bigness and opposed to the powerful both in business and in government (anti-national). It opposed the concept of an elite (Mowry, 1958, p. 195). Croly (1963) indicated that Progressive aims were similar to those of the Jeffersonians and Jacksonians as far as equality, democracy, and the general welfare were concerned. *However, he indicated that Progressivism should adopt the Hamiltonian instrumental values of governmental action and nationalism in achieving their goals. 368 Based on historical findings and our study of the White Court, another reference symbol would be political party. Party, as compared to Progressivism in this period, would be a more conservative, traditional force. As a reference symbol, it seems to have been given definition and meaning by traditional ideology and past historical events. Its content, as suggested by our analyses, is (for Democrats) pro-states' rights, anti-Judicial power (pro-democracy), pro-liberty, anti-government, pro-debtor or soft money, pro-labor. anti-Negro, and pro-alien. On these issues the Republican position is pro-national government, pro-Judicial power, pro-sound money, and anti-debt repudiation, pro-Negro civil rights, anti-liberty, anti-alien (or pro-nativist), and anti-labor. Hence, party provided for the White Court Justices a reference symbol for states' rights, based on Jeffersonian democratic ideals. Jeffersonianism claimed that only local government produces true democracy (Dumbauld. ed.. 1955; Peterson, 1960). Furthermore, the Civil War conflict over states' rights reaffirmed this Democratic states' rights value. Party also influenced Democrats to maintain liberty and anti-government sentiments from Jeffersonianism and the experiences of Civil War oppression (Peterson, 1960). Equalitarianism as a value was enunciated by the Jeffer- sonians and strongly asserted by the Jacksonians (Grimes, 196#. pp. lO3-lOu; Peterson, 1960). Populism (which merged into the Democratic party), Bryan Democracy, the lower-class 369 voting base of the Democratic party and the above ideologies led the Democratic party to espouse the democracy ideal: state government supported by popular rule as opposed to Judicial power. Hence, these values were absorbed into the reference symbol of the Democratic party and were transmitted as values associated with that party. If party and party ideology are transmitted primarily through political learning within the family, it would be a conservative force in politics. Such a conclusion is not contradicted by our study. But if Progressivism was on the other hand really a discontinuity in politics, from where did it arise? It was couched in traditionalist terms and promised a return to or preservation of traditional values, so certain traditional values passed on by family learning supported it. Yet, basically, it seemed to be a discontinuity, breaking with traditional concepts, and arose where tradi- ‘tion was greatly weakened. Its three most dedicated sup- porters were sons of immigrants (Clarke, Brandeis, and iHughes), and hence, might not have been imbued with tra- «iitional values. These three and the two other Justices .also supportive of Progressivism8 were products of large eastern cities where tradition was less strong than in rural areas and social change was greatest. Hence, peer 8Holmes and Pitney. 370 group influence, which is a source of discontinuity, prob- ably operated here. New ideas generated by heterogeneity in peer groups and environment and ferment from social changes had the greatest opportunity to make their impact felt and quite obviously did so on these Judges as it may have on Progressives in general. The non-Progressives, on the other hand, were mainly products of traditional, homogeneous, or rural environments. These include White, Lamar, Lurton, van Devanter, McReynolds, and McKenna. Day falls in the middle, both in terms of support of Progressivist programs and his environment. He was a resident of a small Ohio town. Harlan is the exception. He adJusted his philosophy to the changing environment and to changing events. He lived in Washington for over 30 years and had ample time to become attuned to changing events. His character allowed his learning process to continue throughout his life, pos- sibly influenced by his sons who were probably Progressives since one eventually became a member of the I.C.C. (Clark, 1915). The process of political socialization in transmitting values and generating a new ideology seems adequate in eXplaining how the White Court Judges arrived at their values and ideologies. The reference symbol of party was transmitted to the Judges by means of parental influence. Many of the values and attitudes associated with party were also transmitted along with that symbol. New peer groups, 'new influences, and new social conditions modified their 371 value systems. However, these changes occurred in the con- text of party values and attitudes. The Judges' reactions to events reflected institutional and group identifications in generating the social and political values acquired dur- ing early socialization experiences (as Dawson and Prewitt, 1969, pp. 129-131 describe the process). The Judges' peer groups before Joining the Court (at least) were influential in generating these changes since where such influences were most likely to occur were also the places where most support of Progressivism did occur. These places were in the East and urban areas, politics on the state level, and within the Progressivist movement. From origins and life experiences in places of greatest complexity of ideas, heterogeneity, and where social and geographical mobility was greatest, the Judges were most likely to have adopted Progressivist views. Furthermore, Judicial reactions to Progressivism seemed tied to their association with political party and party leaders. Hence, when Theodore Roosevelt and the Republicans were championing Progressivist programs, Republican Judges were likewise supporting them on the Court. When the Progressiv- ist leadership fell to Wilson this situation changed radi- cally and Democrats began to embrace Progressivism and to support national powers. Thus a trend was begun which cul- rninated in the Democratic New Deal. It is to be noted, inoreover, that the same values which Progressives held dear ‘were also basic values of the Democratic party such as democracy, the general welfare, states' rights, and perhaps 372 I even equality. Hence, it may have been inevitable that as Progressivism became modern liberalism, it found a permanent home in the Democratic party. In the last halfiof the White Court, the polarization of the Judges' voting on Progressivism became marked. It may be asked whether a "liberalism" reference symbol was present on the Court during the previous 70 years or so. It was noted that on the Taney Court a liberal-conservatism division occurred probably out of agrarian versus commercial- industrial sectional differences. This reference symbol seemed to have faded by the latter part of the Fuller Court. It may be suggested that since party influence failed to be a guide on economic and class matters, Judges made their decisions without a liberalism reference symbol but decided opinions on the basis of other reference points and issues such as federalism and other legalistic issues such as the tax power, the police power, the Commerce power, substantive Due Process, the Contract Clause, Judicial restraint, the common law, and so forth (see Paul, 1960). Hence, in the first period of the White Court these traditional concepts .seem much more important than in the second period. Com- merce Power and Judicial Restraint fail to appear as sep- zxrate factors in the second period and Federalism decreases 111 importance. The second period is more easily explained 111 terms of fewer factors and the importance of the Pro- gmwessivism reference symbol is greatly enhanced. 373 Reference Symbols in Politics.--Edelman (196#. p. 121) writes that words which a group uses can be taken as an index of group norms and conceptual framework. This may be applied to political party as a group. Hence from the Republican party comes a reference symbol such as the ”New Nationalism.” This value of nationalism is found throughout the history of the Republican party (prior to 1920). On the White Court, Republicans fairly consistently support nation- alism and in the first period, Republican Judges firmly sup- port Liberal Nationalism. From the Democratic party comes the concept of Wilsonis "New Freedom." Liberty seems to have been a traditional value of Democrats. Furthermore, Democratic Judges on the Court value liberty higher than Republicans and support Libertarianism quite strongly. The very name of the Democratic party seems to imply a more sympathetic commitment to and valuing of the democratic process. Party ideology seems more firmly committed to this value and the Democratic Judges on the White Court(and in other periods of the Court as well) fairly consistently ‘walue democracy higher than Republicans do in Democratic opposition to Judicial power over more democratically arrived at decisions . Edelman (1964, p. 172) also argues that mass publics respond to conspicuous political symbols rather than facts. Such symbols include conspicuous events. Hence, this might 371+ explain why Progressivism saw its greatest upsurge after Theodore Roosevelt's publicity and support (Mowry, 1958). Changes in a mass response involve efforts to find a new perceptual outlook with more meaning (Edelman. 196#. p. 174). Thus Progressivism might have been a revitalization move- ment (Wallace, 1956), synthesizing old values into a new ideology. Old myths and symbols such as Laissez-faire or social Darwinism failed to indicate to the public how to shape policy, nor did they give reassuring symbols. These symbols became inadequate. Progressivism, then, as an ideology and reference symbol, successfully explained political and social events and allowed the public to con- trol them. Hence, it was adopted as a permanent part of our myth symbolism. The success of the movement on the state level led the groups supporting it to seek even more control on the national level.9 The influence of party and the Progressivist movement and their part in the transmission and transformation of political values seems adequately explained by the prin- ciples of political socialization and symbolism. Finally, an examination of bloc voting on the Court and the individ- ual Judges' life experiences and philosophies and their effect on the Judges' decision making will be made in the next chapter. 9Comporting with Edelman's finding that successful groups seek more advantages at a higher level of govern- ment (196#. chap. 8). CHAPI'ER9 OTHER DETERMINANTS OF INDIVIDUAL JUDGE' s A'I'ITIUDES This chapter will attempt to determine the individual Judge's attitude-value system from characteristics peculiar to that Judge: his life experiences, his ideosyncracies, and his philosophy. It will also seek to define the Judge's unique psychology and attitude-value system. Firstly, additional analyses will be made of other collective factors in the Court's decision-making. These include the bloc struc- ture of the Court's voting in the periods studied, sociometric relat- ionships, and the relative dogmatism among the Justices, using Rokeach's (1960) concept of this basic psychological dimension. Ulmer (1961) studied the effect of the turnover of Judicial personnel on the Supreme Court so far as its effect on the power rela- 1 tionships on the Court was concerned. When corrected for the number of Justices appointed per year, the White Court had the least "stable" power relationships of the 70-year period (from 1888 to 1958) except for the 2 Stone Court. The Justices' philosophies did not "fit" when compared to lBased on Shapely-Shubik power indices. 2The data is taken directly from Ulmer's table (1961, p. 1711). was divided by the number of Justices replaced during the period to reach the above conclusion. This instability in power relationships indicates a significant difference in the attitudes of new Justices as compared to the Justices replaced. Ibid., pp. 174-181. 375 376 Judges they replaced. This may be explained by the fact that all of the members of the Court appointed under White's Chief Judgeship were appointed by "Progressive" presidents: Roosevelt, 'Iaft, or Wilson. (See Kelly and Harbison, 1963). Hence this suggests that the new Justices represented a discontinuity with previous values and ideology, and that the Progressivist movement and the influences of a changing society did have an impact on the Court through new appointments . Shapely-Shubik power indices for the second period of the White Court show that Day was the most powerful man on the Court with White second (see Table 38), but the difference between the two is not statis- tically significant. This might indicate that Day was the social leader Table 38.-Shapely-Shubik Power Indices, 1916-1920 Terms. Day .1278 McReynolds .1106# White .1265# Pitney .1096# Van Devanter . 1200 Brandeis . 1019 McKenna .1129 Clarke .0901 Holmes . 1127 #indicates that the figure is not significantly different from the figure immediately above it in the column. of the Court (as McLean, 19146, p. 66 indicates). White might be consid- ered a task leader of the Court, based on the powers which he exerted as Chief Justice. Day was clearly not a task leader according to Taft's negative evaluation of his ability (Pringle, 1939) and our previous find- ings that he was influenced in his decisions by various other Justices. Day's high power rating might be based on his position as a moderate Judge, intermediate between the conservative and liberal blocs 377 (see below). White, however, appears as a member of the Conservative bloc so his high power status is particularly impressive. Van Devanter's position as third in power seems partly a result of his disposition to avoid dissenting even when he disagreed with the maJority. (See Pearson and Allen, 1937, p. 186.) A second possible indication of power on the Court might be the Judge's tendency to dissent. Table 39 gives the Judge's rate of dissent in all cases of the 1910—1920 period where a dissent was registered. 'Iable 39.—Judge's Rate of Dissent on White Court, 1910-1920 White . 11:9 Hughes . 2158 Day . 157 McReynolds . 262 Lamar . 161 Brandeis . 305 Van Devant er . 17L! Pitney . 309 Holmes . 188 Clarke . 397 Lurton . 216 Harlan . 571 Me Kenna . 2148 Table 39 shows that for the entire period of the White Court, White dissented least often. He dissented in only 114.9 per cent of the non-unanimous cases. This suggests that he was the most powerful member of the Court. Day is second in Table 39, reaffirming the finding that he was a powerful and centrist Justice. Lamar is third and Van Devanter fourth. Van Devanter's tendency to suppress his dissents was reinforced by an affliction called "neurotic pen" by Pearson and Allen (1937, p. 186). He found it difficult to express himself in writing in either a dissenting or maJority role. He wrote fewer than two per cent of the maJority opinions in the 1930-1935 period. 373 Holmes does not seem to be a great "dissenter on the White Court, being fifth among thirteen Judges in a disposition not to dissent. The liberal Justices show the greatest tendency to dissent: Harlan, Clarke, Pitney, and Brandeis in that order. This accentuates the fact that in most cases the conservative side won, leaving the liberals to dissent. 1n the relatively liberal second period of the White Court, for example, 57 per cent of the non-unanimous cases represented conservative victories. Harlan in his last year on the Court dissented in 57 per cent of the non- unanimous cases. His rate of dissent was much higher than the second most frequent dissenter's rate, Clarke, who dissented ’40 per cent of the time. Bloc Analysis. -— The closeness of association of the Justices was analyzed for bloc voting and sociometric relationships among the Justices. The type of interagreement index used was a phi correlation between each pair of Justices (Schubert, 1965a). It measures how often each pair of Justices voted together in the maJority or in dissent compared to how often they disagreed. Table 110 shows the interagreement matrix for the entire period of the White Court. The first period shows only a weak bloc structure. A weak conser- vative bloc consists of White, Van Devanter and Lamar with McReynolds a marginal fourth member. Only the correlation between White and Van Devanter is very high (.29). A second bloc is composed of Hughes, Holmes, and Lurton. Their intercorrelations are even lower than the first bloc except for the Holmes-Lurton association (.37). Their level of agreement is low. It is 379 co.“ Ha. 3H. mm. oo.a 5H. OH. «H. bu. 00. a no. 0 O o.I :H.I 0N.I 3o on.I ad. I mH.I mo. “no- “Adul- WHoI NNoI Ho. ON. I mo.I mo. MOO-l val-m fine- 3% : .I 2H.I «:.I me. I om.I moaonhomoz Ne.I o~.I ae.- ed.- ee.I canes I oo.I N~.I mo.I mucoMoa oo. H a mo.I mH.I man .I ma. oo. a no. mm.I honuam. I no. so. co.” an. we exemao Hm. oo.« «3. maoucsnm I me. I mo. N3. oo.a moaaom Db mos a: Mo: ham am #0 am on .eodeom ommmuemmw one nom1unsoo mean: enuimm moodpmsfi a nomxpom mnodpmflohnoohonnH «an no NdnpdeI.Hd canoe .noseomoe new eon ado mmodemsn one page nonsense“ w oo.a one, no. mm. co.“ m«. mo.I mo.I no” ma. oo. « mo. oo. mm.I a a n Hm.I mfi.I mo. so. mm.I no. mNcl #Ool 3H0- “do- “Hal mo.I no. mo. a mH.I n so. oH.I so. NH.I OH.I am.I mfl.I I an mo.I flfi.I mo. mo.I ~H.I mm.I mo. #3 Q> «A max Max oo. mm.I «H.I I.m~.Iwa.I do. mo.I [nudge a mo. so.I mo. oa.I HH.Iemeemuoges x no. afi.I mo. no. mo. Huang x s~.I ma.I x ~fi.I eo.ImeHoeeomoz 3.... 3? 3? we? annexes a mm.I an. I mm.I eafieam mo.I mH.I mH.I ado mo.I oo.a socpam M. I ma.I mN.I oo acumen OO.H NH. mmadom «o.I ma. oo.H moswsm mm hum am an om 5m I IIHIIIIII1| I .uoanom meHIOfimfl one you pnzoo ends: on» mo moOHpmfih «a Gomtpom macapddonhooHOPCH Hzm ho KdeGJII. Cd ofipwe 380 likely due to agreement on the issues of Libertarianism, State Pro- gressivism, and Commerce Power. This bloc was liberal in the sense of supporting state powers and liberty claims on those issues. Harlan and Day form the strongest bloc on the Court (at .1414), but their position is not aligned with either of the other blocs. One might conclude that little bloc voting occurred in this period and that only three dyads of Justices exhibited themselves in voting: Harlan—Day, Holmes-Lurton, and Van Devanter-White. Only the latter dyad seemed to involve the liberal-conservative dimension implicit in the Progressivism attitude system. The impact of personal friendships on voting correlations does not seem particularly impressive. Lamar, McKenna, and White seen to have formed a friendship group (Lamar, 1926). White shows only low positive correlations with the others and McKenna has a negative correlation with Lamar. Harlan and Day were apparently friends since Day recommended Harlan for the Chief Justiceship in 1910 (Klinkhamer, 19143), if so, it did seem to result in close voting habits since their correlation is highest on the Court in the first period (.41-l). Another method of, defining blocs of Justices in McQAitty's link- age analysis (Ulmer, 1961, pp. 2118-251). Figure 29 shows the bloc struc- ture so derived from the Table 140, ill, and 142 matrices. The double arrow indicates a primary linkage, and single arrows indicate secondary relation- ships . 381 amonpmwOp paw no: cap mmoapman on» pan» mopmoapda K x om. :o.I em.I wo.I mm.I HouIeeeaeeea ee> mm.I mH.I mm.I mH.I mo.I eH.I mo.I epeaz x oH.I mH.I H:.I No. ::.I mH.I meaoesemoz Hm.I mo.I mo.I mo.I NH.I mm.I mo.I sesame: N N m0. un no. HQBQH N Ho.I K mm. counsn o.H x .I am.I eeaeem om. mH.I 0H.I mo.I so. mH.I . oo.H mo. mo. OH. .I mH.I sea +60- MNO' mHol. @00' :HOI. “NOI x mo. COO-H no. 80 NO. hwcpfim 0m.I mH.I H:.I ao.I N H N mo. 50. OO.H N Hm. mo. oxamao mo.I mo.I mo. NH.I mo. Ho.I . no. N oo.H K :H. momma: mm.I H.I ::.I NN.I H K x :o.I m . Hm. N oo.H ma. mfioccmnm H00. 00' wHO-l 000- 500 mm. :m.. “Ho-I wN .l mo. :HO NJ. OOOH mmsI—Hom ab #3 moz .Mozfl «A an mm ham am #0 am am om .ommHIOHmH .eoaema mace: may you unsou mpfink on» no mooapmSh mH com3pmm mcofipmaonnooposz flag mo xfiapszI.m: mapme 382 First Period Pitney 4. Hughes 5 Holmes‘; ’4’ Lurton McReynolds +White ¢ fVan Devanter¢———- Lamar Harlan .k 3 Day Second Period Clarke >Brandeis F A Holmes Pitney—-> Day -——-—bVan Devanter ‘—'.....:_._."""’ McReynoldSC—White Mc Kenna Whole Period Clarke :b Brandeis .,. iHolmes C Lurton Hughes/ McKenna Lamar e ’Van vanter‘: L :3 McReynolds White Harlan‘: Day Pitney (unaffiliated) Figure 29. -- Blocs of Justices identified by Mchitty Pattern Analysis. The linkage analysis for the first period generally reaffirms our previous conclusions on bloc structure except that Pitney is now added to the Holmes bloc. Holmes is also identified as the central figure of this bloc since he has the most arrows directed towards him. 3 Hence, he might be said to dominate this bloc. White and Van Devanter share the domination of the conservative bloc. 383. Table 41 shows the second period bloc structure. In comparison with the first period matrix of Table 140, the second period shows much stronger bloc voting. The intercorrelations between the conservative bloc of Van Devanter, McReynolds, White, and McKenna are higher than the conservative bloc in Table 140. The liberal bloc clearly contains Holmes, Brandeis, and Clarke, Pitney and Day also seem associated with this bloc although they do not show positive correlations with Holmes probably be— cause they differ from Holmes on Darwinism issues. The intercorrelations between these bloc members seem much higher than the intercorrelations be- tween the Holmes bloc menbers in the first period. Furthermore the correlations between each of the members of the conservative bloc and each of the members of the liberal bloc are in Table 1&1 mostly highly negative. This indicates that the members of each bloc not only vote alike but vote differently from the members of the other bloc. Day, however, seems to show a positive correlation with Van Devanter of the conservative bloc due 14 to their agreement on Federalism issues. 3. The arrow points to the Justice who dominates, it originates from the Justice who is dominated (Ulmer, 1961, pp. 2148—251). 14. Sprague (1968) did a bloc analysis of the l9l6—l920 Period federalism cases (p.88). He seems to find a nationalist bloc composed of Day, Van Devanter, and Holmes and a states' rights bloc composed of Pitney, Clarke, and Brandeis. These conclusions are substantiated by our analysis except that Holmes does not seem to be an obvious nationalist. Sprague correctly identifies Van Devanter, McKenna, and White as nation- alists and Pitney, Clarke, and Brandeis as states' rights supporters. He does not identify McReynolds as pro—state since he cast so many anti- state votes in dissent. This indicated an anti—government bias by McReynolds, however, according to our data. Sprague does not separate cases which involve a clear conflict between state and federal powers from those which merely attack state power as part of an anti-government or conservative dimension. 381+ Tables 110 and lll then show that the essentially non-bloc voting of the first period was transformed in the second period into, a situa- tion involving bloc voting. This affirms previous conclusions that in the second period the Court became polarized along the issues of Prog- ressivism. The bloc voting is not nearly as polarized as on the Warren Court, however. (See Shubert, 1965a.) Particularly high associations are found between Brandeis and Holmes (.142) as well as Brandeis and Clarke (.31). The latter two Judges were both Wilson Progressives while the strong sociometric relationship between Holmes and Brandeis has been mentioned. Van Devanter and McReynolds show the highest association in the conservative bloc (.33). Both consistently oppose Progressivism. McQuitty linkage analysis also shows two blocs. The only difference from the structure inferred from the previous analysis is that Pitney and Day marginally associate with the conservative bloc rather than with the liberal bloc. This suggests that Pitney and Day form a centrist voting bloc. Brandeis seems to dominate the liberal bloc as would be expected from his persuasiveness and mastery of sociological facts. Van Devanter seems to dominate the conservative bloc. His influence and persuasive- ness may be inferred from findings by Danelski (in Murphy and Pritchett, 1961) that he was a task leader on the Taft Court. Table 142 shows the matrix for all thirteen Justices on the White Court. It contains same empty cells since some Justices did not serve at 385 the same time. It shows only a weak bloc structure. It suggests, how- ever, that a five-member conservative bloc consisted of Van Devanter, White, McReynolds, McKenna, and Lamar. A liberal bloc is composed of Holmes, Hughes, Brandeis, and Clarke, Pitney, Day and Harlan seem to be marginal members of this bloc. The voting blocs seem tied to Progres- sivism issues since the liberal bloc members rank from one to seven on the Progressivism attitude system while. the conservative members rank eight to thirteen on Progressivism. Since the liberal bloc outnumbers the conservative bloc seven to five, it might be asked whether the liberal side dominated the White Court? This is illusory, since the liberal bloc contributed only feur members to the Court in the first period at any one time. It did contri- bute five members to the relatively liberal Court in the second period but Pitney and Day were only marginally associated with the liberal bloc in that period . Linkage analysis shows basically the same bloc structure. The con— servative bloc is identical. The liberal bloc adds Lurton (based on an isolated association with Holmes) but omits Pitney, Harlan and Day. Pitney seems unaffiliated with any bloc. Harlan and Day form an isolated bloc. Holmes seems to dominate the liberal bloc while Van Devanter dominates the conservative bloc . In essence, attempts to find a structure of bloc voting on a court will flounder unless a court is polarized on a single attitudinal dimen- sion. Sprague (1968) has been unable to find a bloc structure in a 386 universe of "federalism" cases primarily because so many other attitudinal dimensions are also present. Probably in a universe of voting data, evi- dence of a bloc structure is found only if, by chance, the maJority of cases involve the same attitudinal dimension. For example, in the Pritchett (19u8, 1954) and Schubert (1960, 1965a) studies of the Supreme Court, a bloc structure may be seen because the great maJority of cases involve either economic liberalism or civil liberties and the Judges react similarly toward both types of cases. In the White Court data, the question of what voting blocs are present on the Court must be preceded by the question, on what attitudinal dimension is a bloc structure being sought? Each dimension would have its own unique "bloc" structure. On each dimension, Judges will make different voting alliances with other like—minded Judges on that particular attitude system. A better way to examine bloc voting might be to examine the close— ness of the Judges' positions on the largest or maJor attitude systems in each of the two periods. The maJor attitude system in both periods seems to be Progressivism. Libertarianism.and Federalism also seem to be ImaJor dimensions in both periods. Figure 2” suggests, moreover, that rmost of the Judges react similarly towards both attitude systems. This is rnsobably true because these attitude systems are both related to political gxxrty, as noted previously. Pitney, MCReynolds, and, to an extent, Lurton seen1to»react differently towards these two attitude systems, however. Nonetheless, it might be useful to combine Libertarianism and Federalism irnxo one dimension and graph the composite with Progressivism to indicate trma bloc structure of the Justices on these maJor attitudinal dimensions. 397 PROGRESSIVISM FACTOR SCORE COMPOSITE 1 o O O -1 o 0 V\ 'V MK 13‘: 1.0 I 8 See Figure In W , p 22 for key 2 D to symbols L". for Judges' 2 MR names. a; 0 3 Ho LII LI. é LA 2. LU 2 H0 $- -1 g 0 a: 4 I... a: Lu 1? .4 HA Figure 55.--Graph o? Progressivism Factor Score Composite with Libertariani sm- 1.0 LIBERTARIAMSM-FEDERALISM SCORES Federalism Factor Score Composite. 1910-1915 Period PROGRESSIVISM FACTOR SCORES Figure 31.--Graph of Pro tarianism-Federalism Factor Score Composite. o 1.0 elk-.9 r V MK D MR P W HO 8 C gressivism Factor Scfires with EIEr- 1916-1920 Period 388 Since a comparison of ranks results in a lower order metric scale than I factor scores (which involve interval data), factor scores were used to graph the relative positions of the Judges on these maJ or attitudinal dimensions in Figures 30 and 31. Figure 26 (in chapter 7) shows a graph of ranks comparing Pro- gressivism with Libertarianism alone. It may be taken as a rough indi- cation of the bloc structure of the White Court for the whole period. It shows both similarities to and differences from the Figure 29 bloc structure of the White Court using linkage techniques. The differences are not surprising considering the low phi intercorrelations between the Justices of Table 140 and the previously noted absence of an overall bloc structure in the first period of the White Court. Figure 26 can be con- sidered to give more accurate indications of closeness of position between the Justices based on real attitudinal dimensions rather than a chance mix of cases which the entire universe of cases would give. Fig— ure 26 shows that the position of Clarke, Brandeis, and Harlan are quite similar and are all liberal. Hughes and Holmes are close to each other and to the above liberal bloc of Figure 29 for thelwhole Court; however, Figure 29 has Lurton as a member of the liberal bloc but that bloc does not include Harlan. The true positions of these Justices is clouded by the fact that Harlan and Lurton were not members of the Court simulta- neously with Clarke and Brandeis and hence no correlations are possible between these two sets of Justices. Figure 26 also shows a conservative bloc composed of McReynolds, Van Devanter, McKenna, White and Lurton. This affirms Figure 29 in that McReynolds, Van Devanter, and White formed such a bloc. Day and Lamar are mid-way between blocs. Pitney belongs to 389 the liberal bloc on Progressivism issues but belongs to the conservative 5 bloc on Libertarianism. In the sense that bloc analysis is related to sociometric analysis, attention to the body of Justices that sat together on the same Court is more appropriate . Let us consider the separate periods of the White Court. Figure 30 shows the closeness of the Judges' positions involving Progressivism and Libertarianism-Federalism in the first period. It verifies the Figure 29 finding that McReynolds, White, and Van Devanter form a conservative bloc on these issues. It also shows a centrist bloc of Day, Holmes, Lamar, and Lurton. Hughes and Harlan form a loose liberal bloc. McKenna and Pitney form a bloc which votes with the conservative bloc on Libertarian- ism-Federalism but supports the liberal bloc on Progressivism. The first period bloc structure suggested by Figure 29 is probably less accurate than that revealed by Figure 30 since the phi intercorrela- tions of Table 1&0 are quite low except for the conservative bloc which is consistent with the Figure 30 configuration. The Harlan—Day bloc seems to evidence itself only on such issues as State Progressivism, Commerce Powers, General Welfare, and Judicial Restraint. These dimensions are largely absent from Figure 30. The strong Holmes-Lurton voting bloc evidences itself on the issues of Liberal Nationalism (especially Darwinism), Libertarianism, General Wel- fare, and Commerce Power. They voted similarly on these attitude systems. 5The usual type of bloc analysis would, of course, obscure Pitney's relationships to these two blocs. 390 Pitney and Day. Evidence of the low dimensionality necessary for a bloc structure is given by the fact that the two-dimensional configur- ation of Figure 32 explains 113 per cent of the variance in the data. Dogmatism. - Since dogmatism is hypothesized as a maJor psycho- logical dimension involving the arrangenent of a person' s attitude- value system (Rokeach, 1960), a consideration of this dimension was made. An attempt was made to rank the Justices on relative dogmatism. Precise measures of this dimension are impossible since we obviously cannot disinter the Justices in order to submit them to dogmatism scale questions. Nevertheless, it might be asked what the characteristics of dogmatisn are and whether any of our scales might measure this psycho- logical frame of mind. It might be suggested that support of civil liberties and oppressed groups might indicate the type of tolerance and openmindedness that is the antithesis of dogmatism.6 A second characteristic of dogmatism might be a moral dimension. The dogmatist might be intolerant of violations of morality and support government action to impose moral standards on in- dividuals (Rokeach, 1960). Thus we might measure this tendency by means of the scales of Corruption (17), Prohibition (38, and Federal Regulation: Non-economic (20), which involved cases with issues involving prohibition, prostitution and drug addiction. A composite scale was constructed by averaging the ranks of all thirteen Judges on the above "morality" scales plus all civil liberty scales (1 to 6). In addition, the farmer in Land Claims (17), the worker in L_a_b_o_r_ _L . 6Dogmatists are reputed to be less sympathetic to civil liber- ties (Rokeach, 1960) and to ethnic minorities (Rokeach in Hollander and Hunt , 1963) 391 Figure 31 generally reaffirms the much clearer bloc structure of the 1916—1920 period. A liberal blOc consists of Brandeis, Clarke, and Holmes. A conservative bloc consists of McReynolds, McKenna, and Van Devanter. White is also in this bloc but weakens somewhat his allegiance to it on. Liberal Nationalism, Federalism, and particularly Libertarianism. These are issues on which party identification might well influence him to weaken his association with this bloc. Previous findings also suggest that this indeed happened. White is a much firmer member of this bloc on the Darwinism issues, however. Day and Pitney form a weak third bloc which, as previously found in the first period, supports the liberals on Progressivism and the conservatives on Libertarianism- Federalisn. This characteristic of Day and Pitney might well be explained by a conclusion that they were Republican Progressives, supporting their fellow partisans (Van Devanter and McKenna) on the Libertarianism- Federalism issues which seem to involve: party values while breaking with their fellow Republicans to support the Progressivist ideology. The findings of factor analysis of the phi correlation matrix might shed light on the bloc structure of the Court. A two-dimensional factor analysis of the first period matrix reVealed no discernable bloc structure. Moreover, it only explained 23 per cent of the variance of the data. This contributes support to a conclusion that a one or two-dinensional bloc structure did not exist in this period of the Court. Figure 32 shows the configuration of the two-dimensional factor loadings from phi correlations of the 207 cases in the second period. It reveals a three-bloc structure similar to our previous findings. A liberal bloc consists of Holmes, Brandeis, and Clarke, a conservative bloc includes White, McReynolds, Van Devanter, and McKenna, and a centrist bloc includes 392 Below factor analysis based on 207 cases. LOADINGS ON SECOND FACTOR " o a " c 2 O o 2 o I" o 6 Bran’deis . Clarke .6 0 Holmes . lI . 2 K '9 e Pitney U “ o L». Day 0 ‘- In E LL 2 O .,, \5 Z 0 I O ..J Van Devanter O McReynolds O Figure 32.-~Graph of Two Dimensional Configuration of Factor Loadings Based on Phi Correlations Locating Bloc Associations of Justices of White Court. 1916-i920 Period 393 7 (7), and the Negro in Civil Riggs (15) were considered Oppressed or disadvantaged groups and it was concluded that the correspondirg scales might also measure the dogmatisn—tolerance dimension. It is to be noted that some Judges did not react the same to the liberty as to the morality scales. I-hrlan was extremely intolerant on morality scales. This is also true of Hughes, Brandeis, and Clarke to a lesser extent. McReynolds, Lurton, Van Devanter, and McKenna, however, are intolerant on Civil liberties but tolerant on morality issues. Con— sidered separately the morality component ranks correlate negatively with the average liberty rank (at a tau of -.36). Other scales might conceivably measure dogmatism. The Judicial power scales might measure a self-righteous attitude on the part of the Justices. It might measure a belief that Judges in general and the Supreme Court in particular were the only right-minded individuals cap- able of guiding government into proper channels.8 Hence, this could measure opinionation, a concept close to dogmatism. Support of the goverrment in the Laissez-faire attitude system might indicate authoritarian tendencies implicit in dogmatism (Rokeach, 1960). A tendency to dissent might measure either opinionation, a strong 9 feeling that one is right no matter what the maJority decides. It could 7Unions were a new political force contending for recognition and legitimacy as a political influence with resulting sporatic outbreaks 015' violence in its struggle, much like the modern civil rights movement. 8Dognatists tend to defer more to authoritative figures, which would be other Judges. See Rokeach in Hollander and Hunt, 1963. 9Dogmatists are reputed to be less compromising then others. See Rokeach in Hollander and Hunt, 1963, p. 166. 39“ also measure extremity of attitude, a further camponent of dogmat ism. The problem with this measure is that the liberals on the Court were usually in the minority and it might really measure the relative liberal- ism of the Justice rather than dogmatism. A direct measure of extremity of Opinion was constructed out of the scales for the full period of the White Court. A middle rank was given a zero value and larger scores were assigned to ranks in either extremity, whether in a liberal or a con- servative direction. Hence, Justices at the top as well as the bottan of each scale were given maximum extremity scores. The average extremity score for each Justice was thus computed, and Judges were ranked on their tendency to take an extreme position on scales. The Judges' rankings on the above measures are given in Table 143. First, it may be noted that the various measures are not interrelated. The highest intercorrelations are the "dogmatism ranks" (liberty plus morality) with Laissez-faire' (tau of .17) and Judicial Power with Extrem- ity (tau of .23). These are rather low correlations for indices that pur- POPtedly measure a similar concept. However, the morality component of 10 "dogmat 15m" does correlate .59 with the Laissez-faire attitude 835135“ and ~25 with the extremity index. ‘ lOPrimarily because both the Laissez-faire attitude system and the mOI‘elity scale contain some of the same variables. It might well be that: Laissez-faire and Libertarianism measure attitude systems which are in reality components of a deeper psychological construct, which Rokeach would call dogmatism. 395 Table 143. -- Possible Measures of Dogmatism on the White Court Dogma Liberty Moral Judi- Laissez Dis— Extrem- tism Campon- Com- cial faire sent ity Index ent mnent Power Rate Index Clarke 1 1 8-1/ 2 8 6 12 12 Mc Kenna 2 7‘ 2 9 l 7 14 Lamar 3 l4 5 12 2 3 6 Harlan 14 2 13 10 13 13 13 Brandeis 5 5 11-1/ 2 l 10 10 9 Hughes 6 3 8-1/ 2 2 l2 8 3 Lurton 7 10 3 6 3 6 7 White 8 6 10 5 8 l 5 Holmes 9-1/2 9 6 3 6 5 1 Day 9-1/ 2 8 7 7 7 2 2 Van DeVant er 11 11 14 . 13 5 l! 8 McReynolds 12 13 1 14 ll 9 11 Pity 1 3 12 11-1/ 2 11 11 11 10 In the above rankings of the Justices, a large rank should indicate dog- matism, a small rank should indicate non-dognatism. Of the Table 113 measures, the Laissez-faire and dissent index seem least useful as a measure of dognatism. The dissent index seems to be con- taminated as such a measure since it also measures the relative liberalism of the Justices. Reliance will be made primarily on the dogmatism index of Table 143 in rating the dognatism of the Judges. Pitney seems to be a prime candidatefor the most dogmatic Justice since he ranks at the extreme dogmatic end of the dogmatism index and in addition is consistently high on all Table 43 indices. McReynolds seems to be the second most dogmatic Justice. His bio- grapher (Early, 1953) clearly paints a picture of a dogmatic personality 11 as do other sources. He is anti-government, but only slightly moreso 11Pearson and Allen (1937, p. 222) call him "scrooge". Taft called him a grouch (Pringle, 1939). 396 than most conservatives. He is anti-Judicial power but is much more tolerant of it when it supports conservative outcomes. His rate of dis- sent is much higher than would be expected of a conservative during con- servative domination of the Court. One anomaly is that he seems more tolerant on moral issues tran any other Justice. This characteristic could be due to his extreme individualism and aversion to governmental power, being fourth on Laissez-faire. Van Devanter shows up as next in dogmatism and is also most sup- portive of Judicial power. He is moderately high on the extremity index. Harlan presents contradictions in the assessment of his relative dognatism. He is opposite to McReynolds on most counts. He is anti- dognatic only on the liberty component of the dogmatism index. On Judic- ial power he is tenth and would be even more supportive of that power except that he opposes it when it supports conservative outcomes. He is the most dogmatic of the Justices (13th) in intolerance of immrality, sup- port of government measures, rate of dissent (almost twice that of the nearest Justice), and the extremity index. Although he is the second most extreme Justice in support of liberty, it might be asked whether he was not in fact dogmatic in his defence of liberty. The data represents Harlan's last year on the Court, Just before his death at the age of 78. If advancing age and dogmatism are related, one would expect him to exhibit dognat ic tendencies . Compartmentalization is know as one characteristic of the dognatist (Rokeach, 1960).‘ He often holds beliefs or attitudes inconsistent with other attitudes within his attitude-value system. One way of measuring 397 this characteristic for the Justices might be to examine each Judge's non-scaled responses (or inconsistencies) on the attitude scales of the White Court. Ratirg each Judge's inconsistencies as a proportion of cases on which he voted, Harlan is found to have the highest inconsist- ency ratirg. Pitney is second. Both of these Judges appear likely to be dogmatists on the basis of other measures. McReynolds, also a probable dognatist, is likewise high on this measure, being sixth on the Court in rate of inconsistencies . Judges which appear low in dogmatism include Clarke, McKenna, Lamar, Brandeis, and Hughes. Lamar is uniformly nondogmatic on these indices except in support of the Judicial power. McKenna is likewise strongly non—dogratic, being particularly tolerant on moral issues. Clarke, Brandeis and Hughes are somewhat intolerant on moral issues as was char- acteristic of the Progressivist ideology and also supported government action. Brandeis and Clarke also show high rates of dissent and high extremity ranks, which are due to a particularly high support of Prog- ressivist issues. Holmes was probably fairly non-dogmatic. He was tolerant on moral issues, strongly opposed to the assertion of Judicial power, and had the lowest score on extremism on the White Court. It is to be noted, however, that his reputation of a champion of civil liberties seems overrated, according to our measures, based on his performance on the White Court. Only on First Amendment issues is he outstandingly libertarian. It has been noted that Libertarianism which involved liberty for the white race is clearly related to party, with Democrats supporting 398 liberty. A second, more striking, relationship may be here noted when we examine the two scales involving the rights ( or liberties of the colored races. These include the 9311;; Rights pf Nemes (15) and the Civil Liberties 3f Indians (5). A composite index of the two variables ranks the six partisan Republicans as most sympathetic to the colored races and the six Democrats as least sympathetic to their claims. Only Holmes, as usual, does not fit this generalization. As a nominal Repub- lican he votes as do the Democrats. The same overall results are dis- covered when the ranks of the Civil Rights o_f Negrges (15) alone are examined . Individual Ebcperiences and Philosophies 9_f_ the Justices Here the biographies of the Justices will be examined for clues as to their attitude-value systems. Their experiences, ideosyncracies and philosophies will be examined to investigate their possible influ- ences on the Judge's attitudes and voting behavior while on the White Court. Evidence on their values and attitudes will also be examined by studying the pattern of their nonscaled responses on the attitude scales constructed from our data. Non-scaled responses (or NSR's) in a scale, discussed in Chapter One above, suggest that another attitudinal dimension exists in the cases scaled. This is especially true if the NSR's are not random. For an individual Justice an NSR probably indicates a second attitude which dan- inates the maJor attitude measured by the scale in that case (or item). Thus, a study ‘of a Judge's NSR's can give clues as to the arrangement and salience of the maJor attitudes and values within that Judge's attitude 399 value system. Moreover, the Validity of the scales and their ex- planatory power in accounting for a larger proportion of the Judge's votes may be increased if the NSR's canbe accounted for by this method. The NSR's can be explained in several ways. (1) an overriding and more salient value or attitude also present in the case may so dominate the maJor attitude of the scale that the Judge responds to the attitude more salient to him, causirg an NSR. The other Judges do not share with him his view of the salience of the non-scaled attitude and so respond to the maJ or attitude of the scale. Usually additional evidence affirms this situation. The Judge often responds to the more salient attitude in a very consistent and extreme manner on the scale constructed to measure it. The case should fit in this second scale without an NSR for that Judge. (2) The case may contain two issues both of which are moderately salient to the Judge. The two issues have a cumulative effect which prompts the Judge to respond to the case in a more extreme fashion than he would if the case only contained one of the issues. This results in NSR's in both scales for the Judge involved. This type of reaction is described by Rokeach's (1968a) belief congruence theory. (Also see Insko, 1967.) (3) The case may involve two issues. Some Judges perceive the case in terms of the first issue and others in terms of the second. The case then fits into two scales, that measuring the first issue attitude and that measuring the second. Each scale may contain NSR's due to. the fact that at least some Judges perceive the issue of the case to be the issue of the other scale. Differences in perception between the Judges #00 thus inevitably cause NSR's through differences in how to classify the case. The Judges differ widely in their rate of non-scaled responses, suggesting that the Judges differ in their relative differentiation or compartmentalization of the issues. Harlan has the highest rate followed by Pitney, McKenna, Lurton, Hughes, McReynolds, white, Lamar, Clarke, Holmes, Brandeis, and Day in that order. Van Devanter has by far the fewest NSR's or "inconsistencies" of any of the White Court Judges. Sev- eral hypotheses seem to have explanatory value in accounting for the widely differing rates of consistency or NSR's. The one explanation mentioned is their relative dognatism which might result in compartment- alization of attitudes and consequent behavior. This could explain the high rates of Harlan, Pitney, and McReynolds and the low rates of Clarke, Brandeis, Lamar, and Holmes. A further explanation could be the need of some Justices to retain consistent with or to Justify their previous decisions on lower courts. Thus Pitney and Lurton who spent 27 and 12 years respectively on lower courts are second and fourth in their rates of NSR's. Holmes had 20 years on the Massachusetts court and is higher in relative rate of NSR than one would suppose from his reputed open—mindedness and non-dogmatism and well- thought-out philosophy. McKenna's high rate of NSR's could be accounted for by six years on lower courts. A final explanation could be the mental health or senility of the Judge. Harlan's high rate at age 77 in the term preceding his death could be accounted for by these factors. Similarly the second, third, and fourth 1+0]. highest Judges in rate of NSR's (Pitney, McKenna, and Lurton) were re— puted to rave problems of senility, health, and mental deterioration while on the White Court. Harlan;- Harlan's total of ten NSR's can largely be explained by his extreme support of civil liberties, civil rights, am various dis— advantaged groups as well as a belief in the sanctity of contracts which dcminated his attitudes in cases involving other issues. Harlan had three NSR's in Civil Liberties Property (3) which involved issues much more salient to him than the ordinary property rights claims because this involved a ’41“; ‘Q_l§_i_m_§ (16) issue, small property owners against railroad companies. That he valued equality highly in general has been shown. He particularly supported the small land owner in % Claims. I He was the most extrane Justice on the Court on this issue indicating the . great salience of equality to him. One of his few anti—CiVil Liberty (4) votes was an NSR. It was case number 525 which involved a federal tax on liquor. Harlan was strongly for Prohibition (38) and for Federal tax powers (19) two issues which combined to overcome his usual high regard for liberty. The liberty claim was a weak one in his eyes. A claim that to register for a federal stamp to sell liquor in a prohibitionist state violated the Self-incrim- ination Clause. A rare anti-labor vote (7) in a case involving "yellow dog" contracts was probably due to Harlan's belief in the sanctity of con- tracts which was indicated by his quite conservative stance in Contract Clause cases (12). This also accounted for Harlan's NSR in _S_t§_t_§ Bate Setting (’46) where he voted against state power where a contract was involved. 402 Harlan upheld the power of state gOvernment fairly consistently. One exception was an NSR in a case involving oppression of the Negro, involving a central concern of his. Harlan was the most extremely lib- ertarian Justice on Civil flights (15). Harlan was also quite vehement in punishing corruption in government but this issue was less salient to him than proper procedure in criminal cases which accounted for an NSR in the Corruption scale (37). A civil liberty claim was also probably the cause of an NSR for Harlan in Judicial Power:State Courts (65). 12 Let us now consider biographical data for enlighterment as to Harlan's philosophy and for a comparison with our behavioral findings to see if it contradicts or reinforces those findings. Basically most of the biographical information on Harlan corresponds with our conclu— sions on Harlan's values and ideology. Harlan's father was an active lawyer and Whig politican, who was one of the Whig leaders in Congress. He later was elected secretary of the state of Kentucky. Justice Harlan worked in a mercantile house for five years before studying for the law. He became a country lawyer and was elected a county Judge in 1858. Father and son were both slave hold— ers and "southern gentlemen". They were not aboIit ionists , but opposed secession, and Joined the Constitutional Union Party in 1860. Justice Harlan became a Colonel in the Union army. He was a critic of Lincoln in 1863 but won the attorney generalship of Kentucky on the {Union ticket in 1864. He was an Opponent of the Thirteenth Amendment although he and his father had set their slaves free. This opinion may be due to loyalty ”Clark, 1915. Dictionary of American Biogaphy, VIII. pp. 269- 272. Paul, 1960. 56 L.Ed. 1273-1285. Beth, 1955. #03 to his region and slave-owning friends. Thereafter, he firmly sup- ported the civil rights of Negroes, however, embracing the Republican party ideology. Phrlan was a leader of conservative Republicans and ran twice for governor unsuccessfully. He was instrumental in gaining the Repub— lican Presidential nomination for Hayes in 1876. He declined Hayes' offer on the Attorney Generalship but accepted a Supreme Court appoint- ment as a political pay-off in 1877. Harlan's biographies confirm our findings that he was a strong nationalist, pro-civil rights and pro-liberty. His law experiences con- sisted of many cases in which he represented "human interests" and the rights of individuals (56 L.Ed. 1273). Harlan may have carried this role of protector of human interests with him to the Supreme Court. The effect of being socialized politically within the Whig party may have had same influence on Harlan. It may be recalled that Whigs on the Taney Court also supported liberty claims . Harlan has been characterized as despising oppression a.nd sympath- izing with the weak and defenseless (56 L.Ed. 1273). He consistently dissented in favor of Negro civil rights throughout his Judicial career. He also defended the rights of aliens, including Chinese immigrants, and Indians (Clark, 1915).13 His strong support of civil liberties included strong support of the right to a Jury trial (Clark, 1915, p. 61). He would have incorporated the first eight amendments of the Bill of Rights into the Fourteenth Amendment. Tb Harlan they were "sacred elements of 13See 176 us 581, 163 US 573 for civil rights cases and 120 us A 678, 121-l US 621, and 112 US 91! for his support of the other colored races. #01} liberty" (ibid. , p. 173). Moreover, Harlan wished to extend Constitu- tional liberties and Jury trial liberties to unincorporated territories. 0 (Also see Beth, 1955.) Harlan's views on federalizm seem to have confused his biographers. This is probably due to the lack of precise techniques to measure his opinions by biographers, a Characteristic generally true of most bio- graphies consulted in this study. Harlan was a strong nationalist, sup- porting broad federal powers , but upheld state power when no conflict with national power existed (as correctly stated by Paul, 1960, pp. 180, 203) . Harlan narrowly construed state powers over commerce but broadly construed national power in this area. However, he firmly protected con- tracts from impairment by state or city governments (Clar, 1915). This conclusion is supported by our scales and. analysis of NSR's above. Clark also notes that Harlan supported prohibition. His conclusion that Harlan supported the Jurisdiction of state courts over federal is dir- ectly contradicted by scale 65 which places Harlan as the most national- istic Judge on the White Court. Moreover, conclusions that Harlan was anti-Judicial power (ibid. p. 196) is not upheld by our scales which place him as slightly favorable to Judicial power. Such a position on Judicial power and his strong nationalistic stance is likely due to his early political socialization in the principles of the Whig party and those of John Marshall (56 L.Ed. 1285), as well as his later association with the nationalistic Republican party. Harlan was characterized as a leading sympathizer with the Progres- sive point of view (Paul, 1960, p. 180). He took an early liberal stand 1‘05 in Pollock v Farmers' Loan and Trust (39 L.Ed. 1108) which previewed his later liberalism. The consquent severe attack by the conservative press may have reinforced his liberal stance in subsequent cases. Rep- ublican espousal of Progressivism under Roosevelt may have served to reinforce this tendency on the basis of party loyalty. Finally, his son's service on the I.C.C. may have indicated a further influence on Harlan, the influence of more liberal younger members of his family. (See Dawson and Prewitt, 1969.) Further factors in Harlan's liberalism was an opposition to a "power void" in economic matters whereby no government could legislate . He was strongly pro-government . He was nationalistic and, hence, strongly supported Liberal Nationalist programs. Lastly, his sympathy for the oppressed, as evidenced in civil liberty cases, may have extended to economic matters. He reportedly feared an adverse effect on individualism by the increasing concentration of industry. These combined factors may have overcome Harlan's reputed early pre-Court conser- vatism. Biographers tend to dispel the notion that Harlan was dogmatic . He was Characterized as holding no hard feelings or malice in his frequent disagreements on the Court and raving a "generosity of spirit". He was noted for his many dissents throughout his career, however.lu Perhaps the strong moral element noted in his attitude pattern was due to the rural protestantism typical of Harlan's rural environment rather than a personal dograt ism. Little evidence seems to exist to contradict our basic findings that Harlan was a "modern liberal (Beth, 1955, p. 1099) who was pro-government, ll‘No Justice on any Court exceeded Harlan's lifetime total of dis- sents. Beth, 1955. l“-06 pro-equality, pro-general welfare, pro-liberal, nationalistic and anti- Darwinist in his value system. Layton, - In the scales of the White Court, Lurton's votes con~ tained a large proportion of NSR's. Mbst may be simply explained, howe ever. The ranking of his values show him to be pro-states' rights, anti- equality (or conservative), a Darwinist, and anti-Judicial power. These four dominant values explain almost all of his NSR's. Thus, case number 2H8 in scales number five and sixteen seemed due to his anti-Judicial power attitude as did cases 257 and 260 in scale number nine. This atti— tude overrode the subordinate issues. Likewise his high regard for states' rights overcame his conservatism to account for NSR's in.case 317 and 239 in scale number 37 and case 239 in scale number 2#. His NSR's in cases 2H8 and 2&9 in Judicial Power Over State Courts (65) disappear when this scale is divided into separate scales involving liberal and conservative outcomes. Thus he supports federal Judicial power over the states when it serves a conservative cause but supports the state when it does not. Hence his conservative outlook.dominates states' rights in cases involve ing state Judicial power rather than substantive state powers. His NSR in case 250 in scale 65 and his NSR in case 215 in Criminal Due Process (h) may be accounted for by the fact that they involve the civil rights of Negroes which involve both states' rights and the traditional Southern anti-Negro look. His NSR in case 2N3 of scale number 32 involves a Dar- winist issue on which he was particularly conservative. Little is written on Lurton's life. His father was a physician and druggist in Newport, Kentucky. Lurton quit college at the outbreak 1&0? of the Civil War, took his family South and Joined the confederate anny as a private. He was captured, but escaped and Joined Morgan's raiders. He was recaptured, became ill near the point of death, and was paroled at Lincoln's request. Lurton worked in Tennessee politics against the repudiation of state debts. He served an appointed three- year term as state chancellor of Tennessee, was elected to the state supreme court, serving seven years, and was appointed by Cleveland to the federal circuit Court of appeals, where he served for 17 years. Taft elevated him to the Supreme Court. It may be noted that Lurton remained a staunch states' rights man in spite of his 17 years as a federal circuit Judge. His 25 years in local law practice and state politics seemed to have the predomimting influence over him. He did , however, favor federal courts when they con- flicted with state court decisions, suggesting a quite natural tendency to sympathize with lower court federal Judges consistent with his exper- ience. Lurton was reputed to be committed. to representative government (59 L.Ed. 1508) which may account for his opposition to Judicial power. ‘ He was also considered to be a protector of individual liberty. He sup— ported both the rights of persons and property (59 L.Ed. 1509)." This evaluation is consistent both with our findings that he was a libertarian (his fifth value was liberty) and a conservative (his second value was anti-equality). He defended the rights of property as "essential to I human liberty and progress". This conservatism seemed to be related to his rural birth and background. Lurton was considered an expert on equity Jurisprudence, and an avid follower of the old common law. = He also #08 was an expert on admiralty and patent law. The m scale (29) ranks him eleventh as pro—patent and anti-competition. His principal Opinions were in the areas of antitrust, tax powers, and railroad regulations. He ‘ was conservative in antitrust matters but relatively liberal on tax ' powers (sixth on the Court) and railroad regulation (sixth on the Court on scale 27). Lurton was particularly severe in limiting the powers of the national government except in tax matters. When Roosevelt considered the appointment of Lurton to the Supreme Court he felt that Lurton' 3 opinions were satisfactory on the "negro questions , on the power of the federal government, on "corporations" (antitrust), and on labor. Our data seem to indicate that Roosevelt was wrong on all four counts as Lurton turned out to be tied for the most conservative White Court Justice on Civil fights (15), the most conser- vative Justice on Liberal Nationalism, and second only to Holmes in opposition to antitrust legislation. Lurton was the fourth most conserva- tive Justice on labor. Hence, Roosevelt's information on Lurton seemed to be quite faulty. (See lodge, 1925, II, pp. 228—231.) Basically, Lurton seemed to be an extreme individualist (like McReynolds) as well as a supporter of states' rights, anti-equality (con- servatism), Darwinism, democracy, and liberty. He was also strongly anti- government . W. — Tamar's pattern of NSR's is not simply explained. He seemed impressed by minor legalistic issues. His maJor values were pro- Judicial power and states' rights. These issues sporadically take on greater values in specific cases. In NSR's in Civil. Rights (15), and in #09 scale 33 in case 355 he supported states' rights when state officials were threatened by a federal law regulating national elect ions . Other NSR's involve support of the use of Judicial power by the federal courts (case 277 in scale 9, case 346 in scales 61 and 35, case 3117 in scale #0) and support of the Judicial power of state courts in case 278 in scale 32. Lamar seems selective in which cases he favors Judicial power, but no clear pattern emerges. For example an NSR in case 308 in scale 65 involves a liberal outcome which apparently he does not deem worthy of the exertion of Judicial power since he was quite conservative. He was an anti-Darwinist which may explain an NSR in a patent monopoly case, number 2113 in scales 65 and 112, in which he declined to sup- port Judicial power where such power would result in an anti-Darwinist out- come. His attitude favorable to civil liberties explains most of his remain- ing NSR's. In cases 251 and 252 in scale 142, he refused to vote for Judicial power when it would violate criminal procedural liberties. An NSR in case 333 in labor (7), was due to his votes in cases 2180 and H52 against laws discriminating against alien-operated businesses. In _Cr_i_m—__ gal Due Process (ll), an NSR arises because he valued liberty for whites in case 242 higher than liberty for colored races (Indians and Negroes) in cases 269, 270 and 3148. _ An NSR in case 358 in scale 142, was probably due to the fact that the case involved Wilson's power to appoint a Democrat to a federal post. Polit- ical party dominated the outcome of this case and Tamar supported his party. [+10 Lamar's background was that of a wealthy Southern aristocrat. He inherited a large fortune from his grandfather who was a wealthy planta- i tion-owner, banker, and investor. His father was a distinguished minister in Augusta, Georgia and authored religious books. His mother died when Lamar was only seven, and his family were refugees from Sherman's march on, Georgia. His early adult years, like White's, were spent witnessingthe military oppression of the South. This firsthand experience with civil war and reputed reconstruction tyranny led Iamar to see the need for up- holding Constitutional guarantees of individual freedon according to Chief Justice White (60 L.Ed. 1251‘). Hence, Tamar sought to "preserve the rights of all by protecting the rights of each," leading to a high ranking of liberty in his value system. Tamar's rural birth and upbringing may account for his states' rights stance and conservative views, but he spent most of his later life in a city, Augusta. A Southern regioral influence on both issues is also likely. His law practice was varied and he had railroads and corporations for clients as well as criminals and many injured railroad passengers suing railroads. This gives possible explanations for his moderate sup- port for liberties in criminal cases, workers in workmen's compensation cases and shippers in railroad liability cases, tl'at is sympathy for his former clients. It also helps explain his overall conservatism in most cases involving business as does his own background of wealth. Lamar was elected to the Georgia legislature for two terms (1886- 1889) serving on the railroad, Judiciary and banking committees. He was appointed and then elected to the state Supreme Court (1902-1905)- 411 Apparently his experience with elections soured him as he refused to run again. He disliked electoral politics and opposed the election of Judges. By contrast he "loved the law for its own sake, for the truth and Justice it represents" (Tamar, 1926, p. 115). This suggests apic- ture of a Judge who would uphold Judicial power over decisions arrived at by more democratic branches of government, and thus helps I explain his pro-Judicial power and anti-democratic stance on this issue. He was an expert on the law code and was appointed to a cammission to codify the laws of Georgia. While on the state court he favored civil liberty in criminal cases (Lamar, 1926, pp. 122-128). 15 Taft appointed Tamar to the Supreme Court in 1910. Tamar's admir- ation of Chinese friends among the diplomatic corps (ibid. , p. 217) may have prompted his opposition to a law discriminating against Chinese. Southern Justices usually voted against the claims of colored races. Lamar was, next to White, the most liberal Sourthener on Negro civil rights as well. He was very sympathetic to Labor on the Supreme Court and was an anti-Darwinist. Lamar was a very religious, ethical and moral person (ibid. , p. 105) as to be expected of the son of a minister. This may help explain his support of prohibit ion . It may be concluded that Tanar seems correctly categorized as a J effersonian laissez-fairist whose values were pro-Judicial power, states' rights, conservatism (anti-equality), liberty and laissez-faire in that order . 15Taft apparently hoped to break the solid south politically by his appointments of Tamar, Lurton, and White to Chief Justiceship (Pringle, 1939)- 1512 m. -- Hughes' pattern of NSR's can be explained by the pro- bability that his basic values dominated issues of lesser importance to him in specific cases. These values as Chapter 7 shows were Progres- sivism, anti-Judicial power (democracy) and liberty. He also supported the exert ion of governmental power in favor of special interests (espec- ially business). His Progressivist ideology explains the following ‘NSR' s. In case 386 in scales 14, 6, and 31, he ignored a civil liberty claim in order to support federal rarcotics regulation, a Progressivist program. In cases . 265 and 266 in Liability of Railroads (27), Progressivism prampted Hughes to oppose limited liability for shippers, opposing the interests of railroads. In case 233 in scale 35, he supported the federal Hire Food and Drug Act particularly strongly. In case 317 in scale 32 he did not support state Jurisdiction as he normally did, because he even more strongly supported the power of the I.C.C. In case 23“ in scale #0 he favored the use of Judicial power as an exception to his normal behavior, because he supported the right to investigate corporate books. This comports with the Progressivist ideology to expose wrongdoing by pub- licity and is particularly compatible ‘with Hughes' Progressivist career which was launched by investigations into corrupt business practices in insurance . Highes' consistent opposition to the use of Judicial power led to an NSR in case 22“ in Patents (29). His strong support of civil libs-ties resulted in NSR's in case 3148 in scales 33 and 65 and case 240 in scale 36. an Hughes strongly upheld the use of governmental power in aiding special interests, especially business. This is indicated by his high support of government in M M (60) a scale on which Hughes is second. NRS's caused by this strong attitude include case 359 in C_o_n:_ servation (16) which also involved a land claim which was supposedly grant-n ed by Congress, cases 289, 290, and 291 in scales 3 and 114 in which Hughes supported the power of Congress to grant lands to railroads under eminent domain powers, and case 256 in scale 18. An NSR in case 338 in CorruptionzBusiness (MI) was probably due to the fact trat the case involved an alleged attempt to defraud creditors of a private estate rather than a corporation. Hughes seemed to oppose corporate corruption much more strongly than unethical practices by in- dividuals. Hughes' father was a "poor immigrant" minister fram Wales who set— tled in a mall New York town. He preached abolition and prohibition and brought Hughes up in a strongly religious and moral atmosphere (Pusey, 1951, I). This apparently had a lifelong influence on him as his atti- tudes on and off the Court have a strong moral cast, being for prohibi- tion, against corruption, and for other; moral obJ ectives in Federal Regul— ationr Non-Economic (20). Hughes' political experiences were also couched in strong moral terms which included his exposure of insurance company corruption, political influence and corruption as well as the whole thrust of his Progressivist principles. Hence, a low-class status and morality influenced his later liberalism, libertarianism, and moral activism both in his pre-Court and Court behavior. llvllw Hughes was a child prodigy who received his elementary education at home which intfnsified the parental influence. His early law practice included several underdog clients in civil cases. In one case he helped expose business financial corruption. In another case he supported stock- holders against financial promoters. He Joined a social reform club, worked for racial and religious equality, and protested against intoler- ance (Pusey, 1951, I, pp. 68-69). He was active in the legal Aid Society, evidencing a sympathy for those deprived of civil liberties in criminal cases which he demonstrated later on the White Court. He alternated be- tween teaching law and practicing it for several years. Hughes seemed possessed by a drive for hard work. He appeared to be an overachiever, a person driven by feelings of inferiority deriving from a lower-class status than his peers and a general feeling of social inferiority. His beard was one means of overcoming this feeling of inferiority. (See Pusey, 1951 , I, pp. 95-120). He was chosen to be counsel of a state legislative committee investigating the gas utility monopoly in New York City and later aided a similar committee investigating corruption and bribery in the in- surance business. He achieved much favorable publicity from his exposure of corruption in these investigations. Picked as a reform guberratorial candidate, he won two terms, much to the consterration of party bosses. On the Supreme Court, Hughes continued to vote to punish corruption and support investigations of business records. As governor, he acted as a better government enthusiast and tribune of the peOple rather than a collaborator with party leaders. His inde- pendence and support of Progressivism made him a popular state and nat- ional figure , being frequently mentioned as presidential caliber . He #15 supported the setting of utility and railroad rates by ccmmision, child labor laws, women's hours laws, and workmen's compensation laws. He also sponsored other pro-labor legislation, conservation, and anti—gambling laws (beirg consistently moralistic). He also advocated more effective regulation of railroads and improvement of the Sherman Antitrust Law He opposed class legislation, however, and opposed the natioral incame tax amendment, arguing trat it would undermine states' rights (Pusey, 1951, I, pp. 201-253). These opinions were consistently followed by Hughes on the White Court on which he was strongly liberal (Progress- ivist), pro-laborand pro—states' rights. His support of the right of Socialists to hold state assembly seats previewed a support of First Amendment rights on the White Court . T'aft nominated Hughes to the Supreme Court to avoid his possible competition for the presidency and to increase public confidence in the Court. On the White Court, Hughes was uniformly liberal on all cate- gories, quite consistent with his Progressivist ideas and attitudes while governor. Thus he was for both state and national Progressivist programs and was pro-labor a.nd pro-liberty. Having stated a profound faith in the people and democratic values while in politics, he thus was particularly extreme in opposition to Judicial power, being second only to Brandeis in supporting democracy as a value. He was less extreme in general in sup— porting states' rights, however. Her was moderately conservative in support of Darwinism, being sixth in support of this ideology as well as in opposition to anti-trust regulation. His business association with large corporations may rave led him to a moderate approval of their con- tribution to the economy. Basically, Hughes was most like Brandeis and #16 Clarke in being a Jeffersonian-Jacksonian in ideology. Several of Pusey's (1951) evaluations of Hughes seem contradicted by our data. He holds that Hughes was a. supporter of immigrants yet he is only ninth in sympathy with the claims of aliens (scale 5). Pusey holds that Hughes supported federal Jurisdiction when in conflict with state powers (3213., I, p. 303). Yet Hughes seems clearly state-oriented both on the Federalism attitude system where he is fifth out of thirteen Judges and on the Commerce Power attitude system where he is tied for fourth out of eleven Jedges . He did uphold federal power whenever pos- sible, but upheld state powers even more often. He granted power to either level of government whenever it chose to exercise it. When fed- eral courts conflicted with state courts and laws he firmly sided with states' rights, being second only to McReynolds in this respect (scale 65). Pusey holds that Hughes opposed prohibition and personally indulged in social drinking. However, he was tied for third in support of prohibi- tion in scale 38 on the White Court. This suggests the dominant influence of his parental training. After leaving the Court, Hughes represented business in an attack on the wartime Lever Act. His position seemed to undermine natioral Com- merce powers but he based it on the civil liberty issue. Pusey holds trat Hughes influenced Holmes and White on the White Court. Table '40 shows a slight positive correlation between these Judges but hardly suggest a maJor influence. 1+1? Pitney. — Pitney was called "unpredictably discordant" by Rodell. (1955). His unaffiliated bloc position and 90 NSR's, highest on the Court, seem to verify this evaluation. This seems to suggest a high level of compartmentalization of his attitudes resulting in highly specific and ideoscyncratic views. However, most of his NSR's can be explained in terms of his domirant values. His most extreme positions seem to be pro-Progressivism, anti-Darwinism, anti-liberty and pro- Judicial power. Furthermore, he is pro-government , and pro-states' right 5 . His anti-Darwinism seems based on a pro-liability position. He seemed to consistently favor the plaintiff in suits against business or government , supported business claims against government , supported the claims of workers against companies for Job-related inJuries, and supported creditors in suits against debtors, bankrupts, and stockhold— ers of indebted corporations. He also supported suits for damages due to monopolistic and discriminatory business practices. However, in M Claims (18) he tended to support the Claims ofrsrall businessmen (especially lawyers) more often than those of big businessmen. This seems to account for an NSR in case 1516, for example. As the son of a banker, Pitney might have been expected to rave been socialized to support the payment of debts and firancial claims. He seems to consistently support such financial responsibility . Pitney's daminant pro-liability, anti-Darwinist position seems to account for the following NSR's: case 316 in scale 10, case 390 in scale an and case 350 in scale 32 (which fit in scale 27), case 3 in scales 214 #18 and 1&2 and case 25 in scale 53 (which fit in scale 27), cases 52 and 136 in scale 20 and case 159 in scales 20 and All (which all fit in scale , 28). Several NSR's seem influenced by his strong support of Progressiv- ism including cases 3A1 and 3112 in scale 10 which are related to his sup- port ‘of state rate regulation (scale 146), and case 3H0 in scale 18, related to his support of conservation. Pitney also strongly supports the use of Judicial power, being third on the Court in support of that power after Van Devanter and Tamar. On the issues of Darwinism and Federalism, Pitney supports smallness as op- posed to largeness in terms of economic units and goverrmental units. This tendency is also apparent in his Judicial power attitude. He sup- ports lower court Judges most strongly, especially federal Judges. He is the most extreme and consistent Justice in supporting the power of . federal Judges on the lower courts (scale 110) and the power of Judges over executive officials (scale 61) . He favors Judicial power in general in scale 57. He favored federal Judicial power over state laws (being fourth out of 11 Judges), but when it was a choice of federal Judicial power as opposed to state courts (scale 61%), he favored state courts, be- ing third highest in favoring state courts. Similarly he supported lower federal courts when they conflicted with the exercise of Supreme Court. powers in numerous cases . Moreover, Pitney supported lower court anti- labor inJunctions consistently and lower court convict ions in criminal cases without exception. In addition, .he supported lower court Judges in their discretion in charging Juries or reversing Jury decisions. His #19 sympathy with lower court J udgesE may W911 be explained by his 10198 experience as a lower court (state) Judge which led him to defer to their decisions and protect the exercise of their powers and preroga- tives. However, Holmes and Lurton who had even more experience as lower court Judges did not stare Pitney' s parochial support of Judges in any of the above situations except that they also supported Judges in conflict with Jury decisions (scale 62). Pitney's NSR's which may be accounted for by supporting Judges over Jury decisions include case 331 in scale 9, cases 272 and 352 in scale 26, and case 38# in scales 32, #2 and 65. NSR's which may be due to supporting state courts in the face of federal court power include case 38# in scales 32, #2 and 65, case 265 in scales #2 and 65, and case 68 in scale #2. NSR's which are probably due to Pitney's support of lower federal court powers include case 380 in scale 27, cases 338 and 335 in scales 65 and #1, case 267 in Scale 3, case 268 in scale #2, case 8 in scales 12 and 8, case 177 in scale 22, case 185 in scale 33, cases 96 and 18# in scale #1, and case 208 in scale 53. In case 307 in scale 36, an NSR seems due to a support of Judicial power in general. In add- ition, the NSR in case 97 in scale 29 results in limiting the power of the Supreme Court and thus enlarging lower court powers . Pitney strongly supported the conviction of crimirals by lower courts even in the face of civil liberty claims which resulted in NSR's in cases 269 and 270 in scale 33 and cases 96 and 18# in scale #1. Simil— arly Pitney strongly supported convictions for corruption (scales 37 and ##) 16His support of I.C.C. powers could derive from perceiving them ~ as a quasi-Judicial and authoritative body. vvvvv #20 and violation of prohibition laws (scale 38). This might be due to support of lower court Judges or due to the morality aspect involved in these issues (as in Progressivism generally). These issues over- came other issues such as states' rights for Pitney causing NSR's in case 121 in scales #6, #7, and 28 case 160 in scale 18, case 136 in scale 20 (involving the corruption issue) and cases ##9, 86, and 165 in scale 33 (involving the prohibition is’sue). Pitney, as a state Judge and politician for almost all of his pre— Court political career, carried states' rights convictions to the Supreme Court. This issue dominated many lesser issues in Pitney's decisions. This resulted in NSR's in case 3#7 in scale 60, case 382 in scales 18 and #1, case 385 in scale 18, case 317 in scales 22, 2#, and #7, case 3#3 in scale 65 (which fits better for him in scale 36), case #52 in scale #2, case l#7 in scale 1# , cases 103 and 10# in scales 20, 35, and ##, cases 113 and 117 in scale 35, case 68 in scale #2, and case 72 in scale 28. Practically all of the above cases fit without an NSR in one of the federalism scales (32 or 33). In addition other NSR's seem due to the states rights variable. Case 20 in scale 7 indicates trat Pitney supported state powers in legislating on wage and hour laws but not fed- eral powers. Likewise in cases 155 and 156 in scale 9, he opposes F.E.L.A workmen' s compensation claims but otherwise he support claims under state programs . At least one issue completely predominates Pitney' s pro-state bias (in addition to the prohibition cases noted above). ' T'rat issue is the party-related Negro Civil m issue (scale 15) which results in NSR's #21 in cases l#5 and l#6 in scale 33. Pitney differentiates between state power, which he supports , and municipal powers, which he does not. He shows a narrow view of city powers to tax and abrogate contracts which seems to result in NRS's in case 363 in scale 36, case 32 in scale 12 and case l#O in scales 12 and #0. Pitney generally suported the claims of shippers against carriers for damages but not when the time limit specified by federal law rad run out. This technicality seems to cause NSR's for him in cases 88, 9#, 107, and ##3 in scale 27. He also seemed less sympathetic tran other Judges to humane considerations in damage cases such as an inJury to a child (case 71) and a delay in shipping a casket (case 379) in this scale. Other NSR's result from his perception of the issue of a case differing from other Judges. Case 287 is seen as a NSR in scale #6 but not in scale 35, while case ##5 is seen as not belorging in case #7 but fitting in scale 18 instead. Thus all of Pitney's NSR's seem accounted for by the above explanations except for two cases. Pitney was descended from a prominent New Jersey family. He was the son of a prominent lawyer, Judge, and banker. During a seven year law practice he was active in Republican politics. He became the leader of his party in his section of the state and chaired the 1895 state party con- vention. He served two terms in Congress from 1895 to 1898. He was elect- ed to the state senate in 1898 where he became its president. In 1901 he was appointed to the state supreme court. In 1908 he was appointed state #22 Chancellor, a position he held until elevated to the rational Court in 1912 by Taft (National Cyclopedia, XV, p. 61). On the state courts, he rendered many opinions against civil liberty claimants and labor interests, including rulings against peaceful picket- ing. His reputation as an anti—labor Judge caused no problems with Taft but did prompt bitter opposition by labor in a confirmation battle in the Senate. He was confirmed by a 50 to 20 vote. Pitney had ruled favorable to labor in workmen' s compensation cases, however. Rodell (1955) claims trat Pitney had a compulsion to rave the rat- ional Court approve his lower court decisions. His consistent support of the plaintiff in liability cases was held to be due to his following the punitive New Jersey cannon law in those issues. This may be true to an extent but our date suggests that this is part of a larger anti-business, Progressivist stance by Pitney. Pitney is uniformly liberal except for his anti-civil liberty and anti-labor attitudes. However, he also supported prohibition and Judic- ial power . He opposed the federal goverrment , however , in Fiscal m (18). This issue seems related to his position on liability. He felt that both national government and state government (scale 59) should pay off questionable debts to claimants. Pitney seemed to support highly the value of equality. However his Progressivism seems more motivated by middle—class values than a true equal— itarianism. A disinterest in civil liberty and! labor claims seems to rule out support for lower—c lass interests. He seemed to support middle-class interests against the upper class. Hence, he appeared to be asmiddle- class Progressive. 423 One characteristic pervades all of Pitney's attitudes and values. He was pro-government. In the Progressivist attitude systems and Gen— eral Welfare, he sided with the government. In liberty issues he also supported the goverrment. ‘He supported Judicial power which suggests an authoritarian outlook (rather tran a democratic one.) He was also pro- government on the laissez-faire attitude system, being the third most ex- treme Justice in this regard. Hence, his whole attitude-value system seemed dominated by a pro-government , authoritarian stance . Pitney , then, seems correctly categorized as an authoritarian Progressivist. The reason behind his authoritarianism is unknown as no biography is available for him. A close and faithful following of his father's footsteps, patterning his career after his father, and stepping into his father's law practice sugests a persorality in which authority is para— mount. It is to be remembered that on all the Table #3 measures 'of dogra- tism, he ranked uniformily high in dogtatic tendencies. Pitney's middle-class background likely resulted in a middle-class outlook. His eastern, urban environment probably influenced his Progres- sivism. His lower court Judicial experience encouraged his consistent sup- port of lower court Judicial power as he identified himself with that role. That role probably encouraged him to support respectable law and order concerns rather than civil liberty and labor claims. His thirty odd years in state politics most likely influenced him to support state powers over federal powers. Pitney's experiences seem to have strongly influenced his attitudes . Van Devanter. -——-He ras the lowest rate of NSR's by far of any White Court Justice. He l'as less tran half as many "inconsistencies" as Day, #2# the second most consistent Judge. He has 18 NSR's, of which 17 are readily explainable. - His most highly ranked values are Judicial power (anti- democracy) and nationalism. One-third of his NSR's are explained in terms of one or both of these values daminating issues less salient to Van Devanth Case 269 in scale # both involves natioralism and sympathy for Indians either of which could account for the NSR. Likewise , case 351 in scale 1# involves both natioralism and Judicial power. Other NSR's apparently caused by his strong natioralism include cases 350 and 5217 in scale 28, case 9 in scale 38, and case 51 in scales 20, 35, and 38. The latter two cases involve Van Devanter's opinion that Congress could delegate to the states the power to outlaw the interstate shippirg of liquor. In case 1147 (Missouri v Holland) in scale 33, an NSR seems to involve a pro-state vote. In actuality federalism is probably not as important to him in this case as is his anti-conservation stance. , The other NSR's are due to differences in perception between I Van Devanter and his brethren in which his votes are perfectly consistent when classified in the proper category. Thus, case 63 in scales l8 and 53 show NSR's but do not do so in scale 28 , case 10 causes an NSR in scale 20 but does not when viewed as part of Crimiral Due Process (#), case 2# , shows an NSR in scale #2, but not in scale 9 (Workmen's Compensation : No Federal-State Conflict), and the NSR in case 35 in scale 53 is not present in scale 18 (Fiscal Claims). Case 127 in Civil Liberties : Properjy (3) is not a NSR in Prohibition (38) and moreover involves the confiscation of a private business (a brewery) which would clearly violate a conservative's conscience. A tie-breaking case (number 606) in Civil Rights (15) gives 17Case 52 involves a federal bankruptcy act. #25 him an NSR, but this case involves a Negro's right to vote in a Demo- ratic primary, hardly a cause calculated to interest an old Republican like Van Devanter. In the one unexplainable NSR, Van Devanter supports federal tax- ation of corporations (case ## in scale 19) while opposing war taxes and taxing individual incomes . Van Devanter was the son of a successful small-town lawyer in cen- tral Indiana. After practicing law there for three years he moved to the booming territory of Wyoming in 188# where chances for personal success were much better. Wyoming was a wild territory where land-grabbing set- tlers often fought Indians for land (Pearson and Allen, 1937, p. 188), and railroads (especially the Union Pacific) and cattle interests were ex— ploiting Open and public lands for huge profits. Van Devanter made good use of his opportunity in defending these exploiting business interests in the courts. He was a friend of wealthy cattle ranchers and later be- came general counsel for the Union Pacific. He defended its employees against charges of murder in railroad land-grabbing schemes (ibid.) and fought suits for personal inJury and property damages by railroads.“ Van Devanter grew wealthy by aiding corporations and business in un- ethical practices. Hence, he might be expected to oppose Progressivist aims to curb these same excesses. He did consistently oppose Progressiv- ism while on the Supreme Court. Van Devanter consistently opposed 952m: vation (1# )18 and smaller land owners in a w (16) being the most extreme Justice on the General Welfare attitude system by supportirg special 18This contradicts Kelly and Harbison (1963, p. 687) who claim he was a liberal on conservation. #26 interests and Opposing the general welfare. He wasthe third most con- servative Justice on Progressivism (after McReynolds and white), exhib— iting the procorporation bias which so well rewarded him while in private practice.19 He is tied for the most pro-business Judge in the second period of the White Court. From 1887 to 1888 Van Devanter was city attorney for Cheyenne, Wyoming. He was a member of the territorial legislature for a year. From 1889-1890 he was an appointed member of the Wyomirg Supreme Court (terri- torial) becoming Chief Justice. He was active in the Republican party be- coming clairman of the state committee and a member of the national committee. From 1897 to 1903 he was Assistant Attorney General of the United States assigned to the Department of the Interior. He was in charge of the public lands where he was unfriendly to Indian interests but kind to his former clients engaged in exploitation. From 1903 to 1910, he was a Roosevelt-appointed federal circuit Judge. In 1910 Taft elevated him to the Supreme Court for reasons of geographic balance on the Court as well as his general attitudes. His railroad and cattle ’ baron connect ions were influential in his advancement . Van Devanter's reported support of Indian rights while on the Court (Kelly and Harbison, 1963, p. 687; Pearson and Allen, 1937, p. 191) does not seem borne out be our date on the White Court as he is ninth out of thirteen Judges in support of Indian rights. He was called a prohibition- ist but this seems contradicted by his position of fifth Judge in opposi— tion to prohibition (scale 38). 19. See National C 010 edia° Meyers, 1925; Pearson and Allen, 1937; Murphy, 196#; McErgue in Mir-pgm and Pritchett, 1960, pp. 88—89. #27 He had a keen legal mind and was a task leader of the Court under Taft (Murphy, 196# , p. 88), so he must have been an influential Justice. He was reputed to be afflicted with "neurotic pen" in that he was often unable to express himself in writing. This accounted for the fact that he authored very few maJ ority opinions on the Court ,I frequently dissented without a written opinion, and often suppressed his dissents for this reason (Pearson and Allen, 1937, p. 186). This may make his attitudes seem more moderate tran they actually were. Only three Justices dissent- ed less frequently than Van Devanter. As Terner (195#) points out, Van Devanter was not always reactionary. In the first period of the White Court, he was fairly liberal (6th of 11) on Liberal Nationalism. Otherwise he was consistently conservative. His highest value was pro-Judicial power, which may be accounted for by his predominant experience as a Judge (10 years) rather tran an elected official which led him to maintain harmony with his former Judicial role. He was secondly a strong nationalist. As a Westerner, he was quite likely to support federal power Just as most Westerners looked to federal help in developing and eXploiting the West. His Darwinism probably developed out of the severe competition in the west from which he emerged as presurably one of the' fittest. His law practice experiences probably convinced him that life was a Darwinist struggle with the strong taking wrat they can ‘get. In being a rationalist and conservative, he seemed to be a Hamilton- ian in philosophy quite like McKenna, White, and Day. #28 g. - Day is relatively consistent in terms of our scales. He has the second lowest rate of NSR's. Most of his NSR's can be explained in terms of three basic factors: extreme rationalism, foreign power con- siderations, and a narrow view of city powers. Day was a national officeholder for seven of the eleven years that he held public office. He was in addition a Republican and the Secretary of State of his country. These reinforced his nationalist tendencies which were third more rationalist-minded White Court Judges. Nationalism could explain his NSR's in case 308 in scale 28 and case 397 in scale 27. Day's experience as Secretary of State may rave led him to differen- tiated views on foreign policy matters which caused some NSR's. 'Ihus cases 132, 133, and 1311 in M m (scale 19) involved discrimin— atory federal taxation of wartime munitions company profits (which might have impeded war production), while case 15 involved an issue of flexib- ility in settirg tariff rates. Case 2146 in scale 36 involved the power of an island possession, Puerto Rico, to tax a government contracted off- shore dredge. These all involve issues with foreign policy implications . Cases with NSR's in which Day questioned broad powers of munici- palities to abrogate contracts include 280 in scale 60, 263 and 16 in scale 12, and 279 in scales 12 am 65. In case 282 in scale 3, Day's sympathy for Indian rights seemed to result inanNSR. AnNSRincase 181! inscales llOandlseensrelatedto his support of Judicial power. #29 His Progressivist sympathy seems to cause an NSR in case 233 in scale 20 where he supports a state pure food and drug act which fits better for Day in scale 35. Likewise an NSR in case 3119 in scale 22 is related to his strong support of the power to investigate businesses and fits better in scale 43 for Day. Other NSR's seem related to Day's dif- ferent perception of the issue of the case. Case 3110 in scales liland l6 belongs to the Fiscal Claim issue (scale 18). Case 359 in scales ll}, 18 , and 32 fits better for Day in scale 16. Case 307 in scales 1&2 and 65 fits better in scale 36. Case 71 in scale 27 is seen to involve the issue of scale 9 since it involves a personal inJury rather than property damage. The NSR in case 1121 in scales 1 and 20 is most likely due to party considerations since the charges of exceeding legal political cam- paign expenditure limits is leveled against a fellow Republican seratorial candidate . Day was descended from a long line of prominent lawyers and Judges. His grandfather was on the Ohio supreme court. His father was a small- town lawyer and Chief Justice of trat court. Day's law practice consis- ted mainly of such clients as small businesses and local railroads such as the Wheeling and Lake Erie Railroad. He defended railroads from suits for persoral injuries and property damages. He was unfamiliar with the evils of big business or industrialism. He was elected Judge of the court of common pleas after being nom- irated by both parties. He served from 1886 to 1889. Harrison appointed him to the federal district cow't in 1889, but he soon resigned for rea- sons of health. He bacame legal counsel and political advisor to McKinley l+30 from 1889-1898. In 1898 he became Secretary of State. From 1899 to 1903 he was on the federal court of appeals. In 1903 Roosevelt elevated him to the Supreme Court. Day is characterized by Rodell (1955) as motivated by personal decency and noblesse oblige. He was a typical Midwestensr suspicious of Eastern economic power. He held convictions contemporary with his time period. His political and social thinking reflected the Ohio business com- munity of his time (McLean, 19116, p. 24). Hence, Day's moderate support of Progressivism seemed to be a product of his social and political en- vironment, a small-town anti middle-class Progressivism. His support of labor and civil liberty claims was low as would be expected from one so little acquainted with lower-class problems and interests. On most issues and most close cases Day cast the deciding vote, being the most moderate Justice and least in the extremity of his attitudes, next to Holmes (Table 143). Similarly, next to White, he was the least likely to be in a dis- senting role . On antitrust issues Roosevelt considered Day' 8 pre-Court opinions as "right" (McLean, 19%, p. 55), which seemed to be a correct evaluation as Day was fifth out of thirteen Judges in upholding Such legislation. Roosevelt was generally pleased with Day' 5 Supreme Court decisions. Roelofs (1950) considered Day liberal on I.C.C. powers. Day was only mod— erately so, being sixth out of thirteen for such powers on the White Court. Roelofs also held that Day supported federal police powers ard taxation. However, on the former issues Day was moderately conservative, being eighth in support of federal regulat ion but sixth in support of Liberal Nationalism. He was moderately (conservative in support of taxation as #31 well, being eighth in support of state taxation and ninth in support of federal taxation. RoelOfs (1950, p. 50) also holds that Day opposed the exercises of Judicial power, but he was actually in the center of the White Court on this issue. McLean (1946) holds trat Day was the "social leader" of the Court and National Cyclopedia (XXXII, p. 22) holds that he was a Judge of great learning who was expert in matters such as corporation taxes, bankruptcy, patents, and contracts. However, Taft believed Day to be a weak member of the Court (Pringle, 1939) arxi our data suggested that he was influenced by other Justices in his behavior. It is likely that his influence derived from his position as the swing vote in so many cases rather than persoral skills. McLean is clearly incorrect in stating that Day narrowly construed rational powers and broadly construed state powers. All indicators show trat Day was a strong nationalist. He was third out of thirteen Judges in support of rationalism on the Federalism attitude system. He supports workmen' s compensation claims when federalism questions are not at issue . but does not when federalism is raised as an issue undermining the claim (compare scales 8 and 9). The nationalist influence on his NSR's ras been noted . Day's natioralism may be explained by his Republicanism, his ex-; perience in world affatirs as Secretary of State, and his lifelong exper- ience in national affairs rather tran state politics. Thus he spent six years in a natioral office and nine years as McKinley's advisor in Con- gressional and natioral politics. He spent only three years in a state office. III. (I! w (III‘III 432 His primary values, Progressivism (equality) and nationalism, can thus be explained in terms of his experiences. His moderate Progressivism and nationalism seem to place him as a lamiltonian with liberal tendencies. McKenra. -- He ras been called by Rodell (1955) a "sporadic spokesmen" against property interests. He was certainly sporadic. He clearly shifts from a liberal on Progressivism to a conservative in the second period (under Wilson's presidenty). His total of NSR's indicates much sporadicism. The scales show 83 NSR's for McKanra, second highest on the Court. It ras been recorded trat McKenra's thinking late in his career (which includes the White Court as he retired in 1921-l) was slow and confused (McDevitt, 19614; Pringle, 1939). This may account in part for McKenra's apparent in- consistencies . 20 A large maJority of McKenra's NSR's seem to be a result of perceiving cases to be properly in one category while other Justices see them in dif- ferent categories. For example, case 112 is seen by McKenna as being a State Taxation: Due Process (36) case while most other Justices saw it as a Commerce: Taxation (314) case. Moreover, McKenra seemed to attach relat- ively little significance to the Judicial power issue, deciding these cases on the more substantive issues involved, such as Progressivism. This resul- 21 ted in many NSR's in the Judicial power categories. 20Pusey (1951, I) says he had difficulty making up his mind. 21NSR's caused by a different perception of the issues. included in the case by McKenna are as follows: case 367 in scale 9 fits more approp- riately for McKenna in 'M(962). Case 333 in scale 10 fits in scale 7 with no NSR for McKenra, involvirg "yellow-dog" contracts. Case 332 in scale 32 belongs in scale 8 in McKenra's eyes. Case 376 in scales 32, 65, and 142 fits best for McKenna in scale 8. Cases 251 and 252 in scale 37 be- longs instead in scale it in McKenra's perception. Case 380 in scales 65 and 1&2, he perceives as in scale 27. Case 213 in scale 65, he sees as more LE EECC | V “will "‘ 5 .3“ L .U\ :J" .. its r) . ‘ . W ‘ in (.t.: (D CV “33 McKenra also ras certain ideosyncracies which reveal themselves in his pattern of NSR's. He is biased toward a protection of Indians (being the second most sympathetic Judge over the whole period). This issue overrides most other issues in various scales resulting in NSR's in case 282 in scales 1“ and 16, case 318 in scale 33, case 56 in scale ll, case 62 in scale 18 , and case 56 in scale 38. On the other hand, McKenna was only lukewarm in support of Negro CiVil R_ig‘hts (15), resulting in an NSR in case 537 in scale ll. He seemed prejudiced against Chinese aliens both as revealed by his political career (McDevitt , 19116) and as evidenced by votes against Chinese in all cases involving them. Those votes, resulting in NSR's, include cases 240 and £152 in scale 3 and case 386 in scale 19. McKenna seems contradictory in voting on federal-state conflicts. In case 319 in scales 22 and 35 he votes for state Jurisdiction against a federal act. Likewise in a Prohibition (38) case, numbers 165 and 449, he is pro-state. However, in a tax case (number 335 in scales 36, 140, 141, 59, 61, and 65) and in rate regulation cases (388 in scales 10 and 146; 146 in scales 22, 214, 32, and 35; 317 in scale 35), he consistently favors federal power over the states. Federalism here may be less impor— tant than the other issues involved. However, he supports conservation actions only when taken by the state, but not similar federal action. properly in scale 12. Case 3147 in scale 65, he sees as scale 60. Case 530 in scale 41, he sees as belonging in scale 11!. Case 38 in scale 7 and case 1814 in scale #0, he sees as more properly in scale 1. Case 61! in scale 16, he sees as scale 11}. Case 195 in scale 36, he sees as scale 31}. Cases 55 and 1821 in scale 37, he sees as scale 20. Case 136 in scale 44 , he sees as scale 28. Case 88 in scale N2, he sees as scale 27. Case 127 in scale 38. he sees as scale 3. Case N38 in First Amendment (1) also invol- ves monopolistic tendencies of a press organization, arri McKenra seems to vote in that case as if the domirant issue were monopoly, voting for more competition. Thus, McKenra seemed to disregard the Judicial power issues and concentrate on substantive issues, particularly preferring to consider liberty issues (scales 1, 3, and u). a inn '3 ~ '3 b tau In Patent (29) cases, several NSR's are found for McKenna. He strongly supported most patent rights, but not the rights of trademarks (causing NSR's in cases 373 and 375), nor agreements to fix prices as a result of patent rights (causing NSR's in cases 58, lI35, and 1436). He tended to support wartime measures, especially federal tax- ation and tariffs, but no other federal tax laws. This caused an NSR in case 210 in scale 19. McKenra has an NSR in case 357 (in scales ‘40 and 61), already men- tioned as bring about a party vote. Other of his NSR's seem to defy ex- plaration. He supports the civil liberties of labor leaders in cases 612 and 613 in scale ll causing NSR's while failing to support labor's int- erests in case 637 ‘ (lookner'v New York) and case 1427 (Wilson v New) both of which involve wage and hour laws and also result in NSR's. He supports the Mann Act in case 336 but weakens it in case 10. Both votes are NSR's. He seems to reverse his own position in quite similar cases, for example, cases 343 and 111, which involve the same state and same principle revolving around the Contract Clause. It is possible trat Clarke influenced McKenra to a liberal position in case 111. Influence by other Judges could explain his votes where scales cannot. Clearly, his positions :5 :w a». HW- b—a— "I: ..; “'35... do seem "confused" . McKenra was the son of lower—class Irish Catholic immigrants. His father was a baker and a Democrat . His early Philadelphia environment was charged with race preJ udice and religious bigotry. His family moved to California when he was twelve and settled in a small Irish Catholic commun- ity. The social center of the town was an Irish saloon (McDevill, 19146). It was an environment which no doubt influenced Mc Kenna' s latter Opposition on the Court to prohibition (he was third on the Court in such Opposition.) His father died when he was 15 and he was forced to help support his family in the bakeshOp. His elementary school, high school, and college training were in Catholic schools. When McKenra entered politics at 22 , most local offices, the state and the ration were controlled by Republicans, so he opportunistically abandoned his father' s party and became a Republican. On the White Court on most party-related issues as Civilfi‘Rights (15), Libertarianism, the rights of aliens (4), and Bankruptgy (28), McKenra is the least regular Republican (next to Holmes). He votes like a margiral Democrat on these issues. This is probably due to his early parental political socializa- tion in Democratic values. One party-related issue on which McKenra votes similarly to other Republicans is Federalism. Here regioral influences are probably dominant. Just as Van Devanter's rationalism seemed related 436 to the Westerner's need for federal help in developing the area, so McKenra' s outlook seemed similarly motivated. Moreover, like Van Devanter and Day, McKenra's political career is mostly natioralist-oriented, un- like Pitney . McKenra's career as a rural attorney was brief and undistinguished. He was primarily a politician and office-seeker. He was elected county district attorney at age 22 in 1866 and served until 1870. He was elected to the state legislature in 1875. He unsuccessfully ran for the House speakership in 1876. He unsuccessfully ran three times for Congressran from 1876 to 1880, but firally won in 1884. He served in Congress from 1885 to 1892. He was appointed a federal circuit Judge by Harrison in 1892 and served until 1897 when his former Congressional friend, McKinley, appointed him to the Attorney Generalship . Thus McKenna served in state office for only six years but served in national office for fifteen years. Furthermore, he unsuccessfully ran for federal office during a six year period. Hence, it is not surprising trat on the White Court he was a strong rationalist. Party, region, and office-orientation combined to influence him toward natioralism. McKenra was by far the White Court Justice most thoroughly grounded in politics both in terms of serving in elected office and running for office. One might conclude that he would be more liberal and more likely to Oppose Judicial power. It is true that in the first period of the White 4'37 Court, he was relatively liberal on Progressivism (fourth) and moderately Opposed to Judicial power (sixth). However, as he grew farther away in time from his political career he apparently grew more conservative. In the second period, he became conservative on Progressivism (seventh) and less opposed to Judicial power (seventh of nine Justices).22 Moreover, he did take on the role of a lower court Justice for six years, and could be considered to rave been influenced by trat role. McKenra's political environment in California was one in which graft and corruption were commonplace and acceptable. His career in the legis- lature coincided with the wholesale bribery Of that body by railroads. In campaigning, he defended such activities saying that there may be wisdom in - bearing the ills of corruption and spoils (McDevitt, 1946, p. 37). There is evidence trat he accepted the necessity of using political office to Ob— tain special favors for his constituents and interests trat supported him. Hence, he sponsored bills for certain government payments for constituents, tax favors and exemptions, constituents claims against the federal govern? ment, government land grants to railroads in his district, the taxation of Oleomargarine (which was competitive with certain of his constituents), and more funds for a ravy base in his district. His vote against the I.C.C. was cast because he felt it would hurt the railroads in his district 22. McDevitt, 1946, p. 126 says that McKenra declared his belief in the competence of law-making bodies. It seems that he was not consis- tent in upholding them, however, according to these findings. 1+38 OHcDevitt, 1946). Hence, his political experience led him.to accept as jpart Of the political game the logrolling, use Of political influence fOr special favors, and corruption which so infUriated Progressives. Hence, ‘when.on the court, he Often refused to chastise such activities, He was the ”White Court Justice most favorable to Corruption in_Government (37) and (Corruption (17) in general. He supported business claims against the nat- ional government in Fiscal Claims (18). Furthermore, he is second only to ‘Van.Devanter in sanctioning the granting of privileges to special interests in the General welfare attitude system including Patents, (29), and Con- servation, (14). Clearly both his and van Devanter's regional environment Shaw the widespread occurrence of business exploitation and both benefited .from.defending it in their pre-Court careers. McKenna served in the HOuse on the powerful ways and Means Committee ‘with McKinley. Although his tenure on the federal circuit court was crit- icized for mediocrity, his friendship with McKinley aided him in his appoint- Iment to the Supreme Court. While serving as an Attorney General, MCKenna took a special interest in the proper care Of federal prisoners and introduced several reforms. This humanitarianism was also evidenced after his appointment to the Court in the support Of Criminal Due Process (4), Labor (7), and workers in workmen's compensation cases. Although he was not sympathetic to aliens (particularly Chinese) while in Congress, on the circuit court, or as Attorney General, ‘while on the White Court he moderately supported the rights Of aliens (scale 6), being sixth out Of twelve Judges. 439 Also while Attorney General, McKenna threatened the Union Pacific withifederal governmental fOreclosure fOr debt and thus fOrced it to pay 'the fhll amount on federal liens. This does not suggest a person who was :1 tool of the railroads as Myers (1925) charges. McKenna's vote against tire I.C.C. and help to railroads while a Congressman seems to be mislead- ing. As state legislator he introduced bills to regulate the railroads (McDevitt, 1946, p. 31). On the White Court he consistently upheld carriers' suits against railroads and in the first period tookzantierail- road positions in workmen's compensation cases, the _I____C___g. (22), Rate is}; ulation (23), and Discrimination (24). In the second half of the White Court, however, he became conservative in most cases. McKenna had a para- lytic stroke in 1915 and became increasingly senile thereafter. He became slow, confUSed, and indecisive. Whether his health problems resulted in his increasing conservatism is a purely speculative question, however. The political party factor may have been the dominant influence. McDevitt (1946, pp. 130—132) correctly states that McKenna supported pro-labor legislation while on the Court. He was seventh of thirteen Judges in that regard. He also holds that MCKenna was "moderate" on Contract Clause cases (p. 112). This is incorrect. He was the second most conserva- tive Justice on the White Court on scale 12. MCDevitt (1946, p. 182) correctly states that McKenna was national- minded, but holds that this was also true of his position on state laws in- volving the Commerce Clause. The latter is not true since he was fOurth of thirteen Justices upholding such state legislation. McDevitt (p. 183) also suggests that he was illiberal On First Amendment cases, yet he was fifth of twelve Judges, and showed support of this as well as other liberty claims. 4440 McKenna is characterized as holding that economic and social changes demanded and Justified new governmental exercises of power but that property owners should be protected as they are entitled to the fruits of their labor. McKenna felt that protecting civil liberties was the most important Job of the Court (McDevitt, 1946). These conclusions are not con— tradicted by our data, except that they show that McKenna became very con- servative on Progressivism cases after 1915. McKenna is also held to regard precedent as sacrosanct (ibid., p. 202). He is also characterized as having no legal philosophy (Dictionary of Amer- ican Biography, XII, p. 87). His values are anti—general welfare (deriving from his experiences as a politician), nationalism, laissez—faire (perhaps deriving;from.his father's Jacksonian Democratic tendencies), moderately pro-liberty and pro- labor. His valuing of equality (Progressivism) and democracy (Judicial power) shifted during his tenure on the Court, so they are difficult to evaluate. He was quite anti-Darwinist, however. This seems likely to derive from his low-class status in the manner described in Chapter 8. His pro-labor stance may be similarly derived from his class status. His libertarianism could be a result of his father's political party, a basic humanitarianism, or possibly also a result of his class status. Basically, his overall conservatism and nationalism seem to place McKenna as a Hamiltonian in philosophy. McReynolds. - Justice James McReynolds has a high rate of NSR's which would likely be even greater except that he votes in so few cases in the first period. This reinfOrces a characterization of his personality as dogmatic and compartmentalized. 441 His NSR's are largely explainable in terms of a pro-Darwinist, pro— business attitude, an anti-Judicial power attitude (pro-democracy) and a pro-states' rights stance . His strong pro-business and Darwinist view shows up in many of his NSR's in which he supports business, particularly big corporations and banks, and the wealthy. In case 121 in scale 45, an NSR results from a pro-bank vote. He supports the property rights of big business much more fervently in scale 3 then those of small property owners. In case 457, an NSR results from his support of J. P. Morgan. NSR's in case 406 in scales 3, 28 , 30, and 44 and case 109 in scales 3, 28, ani 44 resulted from supporting maJority stockholders a.nd corporation directors rather tran minority stockholders. In case 424 in scale 19 he opposed an excess profits corporation tax. In cases 52 and 136 in scale 20 he supported banks against debtors. In case 110 in scale 28 and 44 he refused to pun- ish bank officials for negligence. In an NSR in case 200 in scale 27 he sympathized with a railroad's atterpt to fight state supervision. In cases 155 and 156 in scale 9, NSR's result from his opposition to the more severe state workmen' s compensation laws, whereas he supported many claims under federal law. He takes this position in spite of his otherwiise preferment for state rather than federal Jurisdiciton. McReynolds' strong support of states' rights seemed to result in NSR's in case 365 in scale 5 where he narrowly construed Congressioral power, case 345 in scale 22, case 185 in scale 40, case 338 in scales 28 and 40, and case 8 in scale 42. His strong opposition to Judicial power, especially federal, seemed to result in NSR's in case 378 in scale 10, case 380 in scale 27, case 338 in scale 28, cases 343 and 344 in scale 36, and case 442 381 in scale 42. An NSR in case 165 in scale 33 is also due to a Judicial- restraint position since he declined to make a sweeping decision as to the meaning of the Eighteenth Amendment. He preferred to wait for a case by case determination of its meaning. McReynOld ' s extreme illibertarian position on First Amendment free- dons seemed to lead to an NSR in case 407 in scale 40. One of his few liberal views included a firm opposition to prohibition which seemed to result in NSR's in cases 182 and 400 in scales 3, 33, and 38. In these cases the effect of his anti-prohibition, pro-state, and pro-property rights attitudes seemed to mutually reinforce each other to cause the NSR's. Other NSR's seem to result from McReynolds' differences in percep- tion of the real issue of the case. Thus, case 376 in scale 65 was seen to belong in scale 8, case 433 in scale 12 seemed to fit better in scale 46 for him, case 64 in scale 32 fits better in scale 14, case 140 in scale 40 fits better in scale 12, case 171 in scale 40 fits better in scale 3, and case 25 in scale 53 fits better in scale 27. Several cases in Jud- icial power scales seemed to result in NSR's if they involved Progressiv- ism or pro-business issues and appeard donirated by the latter issues, in McReynolds' decisions . McReynolds' strongly conservative views which were pro-property and pro-business, Darwinist, individualistic, and pro—states' rights seemed to be implanted in him by his autocratic and dogratic father and reinforced by his conservative rural Southern environment. This is consistent with con- cepts of political socialization (Dawson and Prewitt, 1969). His father was a surgeon arr} plantation owner, who was uncompromis- ing and narrowminded, a pattern followed by the Justice. The father was a 443 states' rights Democrat. He, too, was apparently a Darwinist as he be- lieved in "natural selection". He strongly supported the rights of private property and felt the state's obligation was to protect it. He opposed such "socialistic" ideas as free public schools (Early, 1954, pp. 26-30) . McReynolds' mother influenced him towards a religious and moral- ist ic fervor . These influences cast McReynolds into a strongly conservative mold. They were reinforced , moreover, by a network of environmental and social influences of a similar character. This emrironmerrt was small-town, aristo- Ocratic , and conservative, heavily influenced by traditioralism, provincial- ism and isolation. The donirant ideas were those of the "plantation aristo- cracy" in their antebellum purity. They included individualism, self-help, a weakened respect for political authority, laissez-faire, and J effersonian ideas of localism, states' rights and strict Constitutional constmction. These influences permeated McReynolds' philosophy at least until he left the South at age 41 (Early, 1954, pp. 1-18). McReynolds moved to an urban environment. But his 1907 to 1912 New York environment was the field of corporation law in which his ratural conservatism was reinforced by serving and being regarded by large corpor- ations who fought governmental and Progressivist controls. His only liberal tendencies were during 1903 to 1907 as Assistant Attorney General and 1913 to. 1914 as Wilson's Attorney General. In these periods he prosecuted anti- trust 1aw violations. This was consistent with his conservatism in con- trolling trusts and economic concentration to restore healtm "natural com- 23 petition" to make the econow secure for individualism. 23. This was his position when he ran for Congress in 1896 as a Gold Democrat. Early, 1954, p. 51 .-._fi_ r.“ A All ,._ _, .- 444 His Vanderbilt training also reinforced his laissez-fairist tenden- cies. During his early Nashville law praCtice (1885—1903), he profited from real estate and banking ventures. In Tennessee politics, he favored trust regulation, a sound currency, economy in government, tariff reduction, the protection of private property, and strict construction of the Constitu- tion. He refused to support Bryan in 1896 ani bolted the party to run unsuccessfully for Congress as a Gold Democrat. He was reputedly skeptical of the representative process. During the first period of the White Court, none the less, he strongly opposed Judicial power in favor of the democrat- ic process. This may rave been caused by his anti-federal tendencies, however . McReynolds was appointed to the Supreme COurt by Wilson on the strergth of his liberal views in opposition to monopolies. McReynolds had been a vigorous prosecutor of antitrust cases under Roosevelt and Wilson. He was fairly liberal on Antitrust (sixth out of thirteen Justices), but his overall conservatism made Wilson sadly regret his appointment . Kelly and Harbison (1963 , p. 687) say that McReynolds "gradually became more con- servative". It is true that he was slightly more liberal in the first period tl'an the second, but he was the most conservative Justice onPro- gressivism in both periods. The chief difference is trat, in the first period, he was less ready to support Judicial power over the other branches of government . McReynolds believed strongly in ratural competition and the small merchant and manufacturer so he was willing to oppose monopolistic prac- tices but not big business 'ELEE (Link, 1947, pp. 116-117; Early, 1954, pp. 319-330; Pearson and Allen, 1937, pp. 228—230). 445 Early (1954, p. 113) correctly holds 'trat McReynolds was against the Judicial power of the federal government, felt that the Court should rigidly define boundaries between state and federal Jurisdiction (p. 127) , and wanted to preserve existing state powers (pp. 188, 369) although he wished to restrict both federal and state power. McReynolds was slightly less restrictive of state regulation of business (State Progressivism). McReynolds wanted a literal (strict) interpretation Of the Constitu- tion. Emergencies did not increase powers. Actually he decided cases on the basis of wrat he thought goverrment ought to do, and felt tl'at indivi- dualism and laissez-faire were the very foundation of our political system (Early, 1954 , pp. 402-404). He Opposed taxation, child labor laws, price- fixing, and unions because they inhibited rational economic laws. Hence, he was a Darwinist as well as a laissez-fairist. He believed in the sacredness of contracts. He put property rights above general social inter- ests. He had no pity for the poor. In his view economic regulation merely undermined self-reliance. The rights of prOperty were not subJ ect to legis- lative whims (Rodell, 1955; Early, 1954, p. 142). McReynolds was a legal technition, adhered to precedents, and defend- ed the "niceties of legal procedure" (Early, 1954 , p. 113). Evidence of dogmatism in McReynolds' persorality is ample. Taft called him a "grouch" (Pringle, 1939). He was also called "Scrooge" and an anti-semite (Early, 1954, p. 84). He could not get alorg with his fellow workers in the Justice department or on the White Court (Pearson and Allen, 1937, p. 222). He constantly criticized his fellow Justices, especially Clarke (Morris. 1964). His attitudes were compartmentalized (Early, pp. 166-167) and opiniorated. He refused to allow off-Court influences to 446 affect his betavior (ibid. ). He was hostile to those who disagreed with him. He insisted on the validity of his own beliefs to the point that he raised them to constitutional imperatives. He was also irritable and socially withdrawn. It ras already been noted that he was high on several other measures of dognatism. It may be concluded tI'at McReynolds was very conservative (anti- equality), a Darwinist and laissez-fairist. These cl'aracteristics seen to result from his early political environment. Similarly he was states' rights oriented probably also as a result of his early environment. He was anti-liberty both from a lack of sympathy with underprivileged elements and his high dogmatism, characteristics which permeated his entire attitude- value system. Like Lurton he seemed to be an extreme individualist in philosophy. White. -- Chief Justice Edward Douglas White was strongly anti- Progressivism, anti-Judicial power, and natioralistic. He was pro-govern— ment in non-economic and non-civil liberty matters. These characteristics explain most of White's NSR's. His nationalism not only led White to support rational Jurisdiction over states' rights but also seems a factor in his support on necessary emergency wartime powers. White was a firmly committed supporter of the war effort. (See Howe, 1961; Klinkramer, 1943). Sipport of Wilson, his fellow Democrat, may rave been a further factor in trat beravior. NSR's explained by support of wartime measures may rave included case 127 in scale 3 involving the wartime confiscation of a brewery (rein- forced by his support of prohibition) and his support of wartime anti-free speech measures as in case 446 in scale 4 and case 402 in scale 33. 447 A further free speech NSR was case 174 in scale 1 which seemed to result from the support of natioral actions but a denial of state power to legis- late in free speech matters. Hence, nationalism also helps account for that NSR. Natioralism seems to account for many of White's NSR's including case 397 in scale 27, case 42 in scale 9, case 317 in scale 22,, and case 532 in scale 4. In many cases his rationalistic sentiments predonirated over his anti—Judicial power views. He was thus placed in the position of supporting federal Judicial power (resulting in NSR's in these scales) be- cause of a conviction that national Jurisdiction was preferred. This in- cludes NRS's in cases 243 and 53 in scale 42, case 306 in scales 42 and 65 and case 307 in scale 65, and case 535 in scale 3. In case 20 in scales 7 and 53, NSR's seem related to White's denial of state powers to pass on wage and hour laws while supporting national power to do so . Similarly White supported rational regulation of aliens but opposed state laws to discriminate against them, causing an NSR in case 297 in scales 3, 14, and 33. He did, however, uphold a state law discriminating against Chihese aliens suggesting a preJudice against all colored peoples. (See scales 5 and 15 for evidence of a bias against Negroes and Indians.) White's Opposition to Judicial power (and support of democracy) seemed to result in NSR's in non-Judicial power scales such as cases 328, 329, and 330 in scale 10, case 213 in scales l2 and 46, case 396 in scales 10, 36, 40 and 42, and case 34 in scale 34. Numerous NSR's eem related to White's opposition to Progressivist programs and an anti-equalitarian attitude, or involve a different 448 perception of the issue involved in the case from other Justices. NSR's involving Progressivism include cases 72 and 298 in scale 3 which fit better in scale 28 for White, case 253 in scale 16 which fits better in scales 28 and 10, case 292 in scale 19 in which White is pro-business case 233 in scale 35 in which White opposes a federal pure food and drug act (fitting in scale 20),, case 339 in scale 61 which fits better in scale 22, case 405 in scales 9 and 53 which fits better in scale 10, case 112 in- scale 36 which White perceives as involving the Commerce Clause (scale 35 , see 63 L.Ed. 1131), case 157 in scale 22 which fits in scale 27, and case 65 in scale 53 which fits better for White in scale 35. Cases 244 in scale 22 and 129 in scales 3 and 4 rave NSR's which seem to result from White's support of national investigations of corpor- ate books (scale 43). His NSR in case 326 in scales 10, 26, and 65 seems related to his readiness to overturn Jury decisions. White was the most anti—Jury Justice on the Court (see scale 62). His NSR in case 48 in scale 36 seems related to a rarrow view of municipal powers to tax. His NSR's in case 79 in scales 18, 29, and 37 seem related to a pro-government stance. White's NSR in case 422 in scale 20 appears to be part of a party vote condemning a Republican senatorial candidate. Case 450 in scale 33 is probably an NSR resulting from his strong support of prohibition. If McReynolds' extreme conservatism and general attitude-value system can be laid to his early social and political environment, the same can be said with equal force with respect to White's environment and views. Their environments were quite similar and their views were quite similar. They differ only on states' rights, libertarianism, and laissez-faire. White was a rationalist, pro-liberty, and pro-government in contrast to McReynolds. 449 Differences in social and political environments seem to adequately ex- plain these differences. White came from the same Southern aristocratic planter—class en- vironment as McReynolds, except that White was directly descended from wealthy aristocratic planters and represented the views of trat class twenty years earlier than McReynolds: flat is the pre- Civil War, wartime and reconstruction experiences of that class and the South in general. White was thus second only to McReynolds in conservatism on Progressiv- ist issues. White was more of a Darwinist tran McReynolds, beirg the most extreme Darwinist on the Court. Being a ratioralist, he was slight- ly less conservative on Liberal Nationalism, being only ninth of thirteen Justices on that attitude system. White was fifth of thirteen Justices in support on ratioralism. His nationalism is due to three mutually reinforcing influences. His family and ancestors were nationalist-oriented, the political party orientation of his family was natioralist, and the economic self-interest of his fam- ily and White himself was tied to national protection. In terms of ambition theory, White's family consistently sought fed- eral office and were thus ratiorally oriented. White's grandfather was a diplomat and federal district court Judge. White's father was a three- term Congresslan. White, himself, asked as a reward for his political act- ivity only the United States Seratorship of his state. Politically, White's family chose the natioralist parties. His grandfather was a strong Federalist in North Carolira. His father was an active Whig in Iouisiana. White of course was forced for political reasons 450 to Join the louisiam Democratic party, but in the Senate aligned him- self with the nationalist wing of his party. White and his father had sound reasons, other than ideology, for being nationalist-minded. Their sugar plantations were dependent on the national tariff for their profitability. His father consistently support- ed tariffs in Congress although it cost him his chances for reelection. The Junior White consistently worked for high tariffs while in the Serate. Their calculations of their own self-interest were not wrong for duty-free sugar eventually almost destroyed the value of his plantations, cutting them to 30 per cent of their former value?“ later on the Supreme Court , he supported natioral powers necessary to our national interest or useful for the future. He upheld the vigorous prosecution of the war and ruled that the Constitution must follow the flag . He upheld numerous emergency powers when important to the war effort , being caught up in the natioral patriotic fervor. As a Senator, he also had been impressed with the need for the national government to exercise its numerous powers (Klinkhamer, 1918, ,p. 73). It weens clear that White had been socialized politically by his politically active family in Federalist and Whig principles, which accounts for his conservatism and rationalism. Basically, his philosophy was Hamiltonian, consistent with those political parties. His father was a Judge of the city of New Orleans and was elected a Whig governor of Louis- iana in 1835 in addition to his Congressioral officeholding durirg his 2“ White sold his holdings for $100,000 of which he had left only $58,000 at his death. Klinkhamer, 1913, pp. 14142—14143. See also ibid. for support of biographical data on White and his family. 1‘51 career. His family was also active in religion, education and the de- fence of slavery in his state. 'Iheir holdirgs in slaves were large. White's family was Irish and Catholic. ‘ He lived in a predominantly Cath- olic town, a semi-rural environment, and attended Catholic schools. He did not go to college, a fact that must have later proven embarrassirg when he presided over a Supreme Court composed entirely of associate Judges who were college graduates.25 White's "education" came as a private in the Confederate army when he saw active service, was captured, and later paroled. He was eventually trained in Roman law in Louisiana. He was active in the Democratic party and was elected to the louisiana senate in 1875. He was quite interested in the honest conduct and purity of elections in this reconstructionist era. He served on committees such as the Judiciary, claims, finance, banks, reform, and charitable institutions. It is of interest that some of these concerns were reflected in his attitudes on the White Court. He was quite concerned with \Rirst Amendment freedoms (1), being fourth of 26 twelve Judges in support of such freedoms (his most liberal attitude), while often upholding convictions for corrupt ion in goverrment arrl busi- ness (scales 17, 37 , and M4). This indicated an interest in reform. 25Why White never achieved much of a leadership role as Chief Justice may be considered here. It could have been this eduction gap. But it is more likely due to Jealousy among associate Justices over one of their number elevated to the high post. See Klinkhamer, 1943. His position as a member of the minority party and as a former Confederate may have weakened his influence somewhat . 25in line with the influence of family ideology on White, his grandfather had urged that the federal Constitution contain provisions protecting trial by. Jury and freedon of the press. This traditional family respect for liberty may have been a component in White's libertar- ianism. Klinktam&, 19143, p. 5. . #52 As part of his family's nObless M outlook he seemed inter- ested in crarity and, while on the Court, supported moderately the claims of M (7), on which he was eighth, and Criminal _Dt_l_e Process (14) on which he was ninth. His position on Libertarianism was quite liberal in contrast with his other opinions.27 Liberty was his fourth ranked value. His shattering experience as a Civil War veteran, seeing the suffer— ings of his homeland and the near-destruction of his country seemed to have profoundly influenced his views for Libertarianism. The reconstruct- ion era revealed to him the worst evils of tyranny. He vowed to uphold and perpetuate the great guarantees of individual freedom "so that the freedom of all might not pass away forever ," and believed that we cannot preserve freedom by destroying principles essential to it (New Republic, June 1, 1921, p. 6). White, like Lurton, may have gained an insight to the plight of the underdog civil liberty claimant out of his experience as a prisoner of war.28 The reinforcing influence of Southern Civil War and reconstruction experiences on the original J effersonian libertarian philosophy has been discussed in Chapter 6 above. It is interesting ttat all Southern Justices who lived through that era valued liberty highly ex- cept for McReynolds who was born a_f_‘_t_e_r_'_ the Civil War era and did not 27. There is evidence that White suppressed some pro-liberty votes (Howe, 1961). Although sympathetic with these claims, he feared reactions against the Court if he upheld them or'preferred to avoid dissent if his vote would make no difference. See Klinkhamer, 1918, p. 232. 28. Perhaps he who tas been deprived of his personal liberty values liberty most highly. If so, would it follow that all Judges who hold power over the freedom of others should be required to serve some time in a prison so as to understand the meaning of the deprivation of liberty? “53 experience it firsthand . White's moderate liberalism on labor (7) has been discussed approv- ingly by Myers (1925) who felt that White alone on the Court had not been a "corporation lawyer." He also noted White's Senate support of fed- eral legislation to improve safety conditions for workers . In louisiana politics, White worked for an anti-lottery and anti- corruption faction and was appointed to the state supreme court for two years (1879-1880). His faction lost but was restored to power in 1889, whereupon White received his reward of the national Seratorship. When in the Senate, he championed the federal income tax which favorably impressed ' Cleveland, whose first two nominees to this Supreme Court seat were reJect- ed by the Senate. The naming of White in 1891! ensured the likelihood that Senatorial courtesy would prevail in his affirmation. Besides, White's opposition to Cleveland's tariff reduction measures was a thorn in his flesh. White was appointed before he could harm Cleveland's legislation significantly. In 1910, 'Iaft so approved of White's Hamiltonian philos- ophy that he elevated him to the Chief Justiceship (Klinkramer, 19143). White's career on the Court was distinguished by a dissent in Mzgufi US 601) and “W v 593% (198 US 15). He gained the respect of Progressives by these two dissents (Klinkhamer, 19)-l3, p. 50). However, he tended to circumscribe the powers of the I.C.C. and the scope of the Sherman Act (in restraining labor as well as business). Our scales, however, show White to be conservative on federal tax powers (tenth on the Court) as well as antitrust (thirteenth) and the I.C.C. (ninth). 29He based his dissent on precedent and tradition IQinkl'amer, 19u3, p. 161. ash There seems to be doubt among more traditional writers tlat White was a nationalist. Paul (1960, p. 205) holds that he was a states' rights man and Klinkhamer (19113) is not sure. cm the White Com-t, our scales 1 show him to be clearly a nationalist, however. ~ White's position on General Welfare can be explained in terms of his own and family self-interest. He benefited from special interest leg- islation (the tariff) and hence approved of business benefiting from simi- lar goverrmental help. Moreover, his support of government on the Laissez- faire attitude system seems related to this situation. Government was seen as traditionally a friendly source of aid and a benefactor. Furthermore, his natioralism seems connected to support of governmental powers (except when promoting Progressivist programs). Klinkhamer (19143) agrees trat he was against Judicial power over the ' democratic branches and adds that he was constantly concerned with the off- Court political consequences of the Supreme Court's decisions. His contri- butions to law included defining new boundaries within which rational and state goverrment 3 might act , extending the national Commerce power , requir- ing Congress to clearly define Congressional grants of power to commiss- ions, and preparing the way for a broad interpretation of the Due Process Clause in liberty cases (238 US 3147). Overall White's values seemed to be conservatism, Darwinism, democracy, nationalism, liberty, and pro-govern- ment as our crapter 7 analysis suggests. Consequently, he seemed to be a Hamiltonian in philosophy . Clarke. -— John Hussein Clarke's attitudes seemed dominated by a General Welfare value, Progressivism, and Libertarianism. The General Wel- fare value involves opposition to the use of goverrment to help enrich 455 business and corporations and grant them special privileges. It, like Progressivism, involves an anti-business bias. 'Ihat General Welfare and Progressivism dominate Clarke's decision making points to a central ele- ment, that Clarke's was strongly anti-business. A large number of his NSR's are related to this powerful element of Clarke's psychology. NSR's in cases 110 and 135 in scale 28, and case 25 in scales 28 and 53 seen largely a result of an anti-business orientation which condemned unethical business methods. The corriemnation of similar fraudulent methods results in an NSR in case 202 in scale 18.30 Although civil liberties and small property-owners' rights usually gained Clarke's sympathy, a case involving a small businessman failed. to do so resulting in NSR's in cases 171 and 1401 in scales 3 and 140. Likewise, an anti-business bias seemed to résult in NSR's in case 121 in scale ’45 involving usury by a bank, in case 88 in scale 110 involving a suit against a railroad, in case 177 in scale 111 in- volving monopolistic discrimination by a railroad, and in case 81 in scale ill involving the unsavory monopolistic business practice of an interlocking directorate. The last three instances prompted Clarke to unusual levels of support of the use of Judicial power. Clarke's next favored element was Libertarianism. He consistently upheld liberty, fairness in procedure, and evidenced sympathy for the in- dividual . Even in Civil Libertyi' Property (3 ) he was foremost on the Court for fair procedure. This fairness extended to normally despised (by Clarke) business and the wealthy, resulting in NSR's in cases 1418, 1419, H2O in scale 19 (involving taxation of increasedvaluation of stock), and an NSR 30. Clarke was the most extreme Justice in condemnirg Busin_____e__ss Corruption in scale All. #56 in case 136 in scale M where he decided not to punish bank directors for negligence in an embezzlement case. Clarke' 8 support for fair pro- cedure also resulted in NSR's in case 10 in scales 20 ard 35. Clarke's concern for First Amendment liberties was eclipsed by a concern for states' rights. This resulted in an NSR in case 1403 in scale ’ l where he declined to find the First Amendment binding on state powers. He likewise upheld state power over federal in case 113, resulting in NSR's in scales 22, 32, and 35. However, he denied the states' power to tax an agency of the federal goverrment, a federal land bank. This in- volved an important Democratic program which a loyal Wilson supporter could lardly permit to be weakened. One of Clarke's most deeply felt convictions was an opposition to prohibition which prompted him to be the most extreme Justice on this issue and overrode in importance his attitudes on other issues, resulting in NSR's in case 86 in scales 20 and 35, and cases lll8 and 1448 in scale 33. Finally, his NSR in case 161 in scales 19 and N2 in which he support- ed the exemption of Judges from income taxes might have been prompted by economic self-interest or at least an understanding of the financial sac- rifice many lawyers undertake in giving up private practices for the bench. It is much easier to account for the conservatism of aristocratic, wealthy Judges with corporate law practices than Judges of wealth and con- nections who were liberal. Among the latter are Clarke, Brandeis, and Holmes. Clarke and Brandeis seem to derive their liberalism from several 457 sources. Their families were, like McKenna arri Hughes, of non-aristo- crat ic and non—prosperous origins. They all had fathers who were immi- grants and had to struggle for their place in society and business. Thus, the Justices were most likely socialized politically so as to sympathize with the underdog and underprivileged classes.31 Clarke and Brandeis were Northern Democrats and thus socialized in the principles of Jacksonian equalitarianism. They had political experiences in geographic areas where an ideological schism between the political parties existed. last- ly, they became aware of the social problems of urbanization and indust- rializtion because they were politically aware of these problems and were exposed to those problems first hand. It has been noted that urbaniza- tion was related to Progressivism on the White Court (Chapter 8 above). Clarke lived in industrialized Youngstown a.nd Cleveland and Brardeis lived in Louisville.32 Clarke's father was an Irish immigrant who obtained same prominence as a small-town Ohio lawyer. He immigrated during the Jacksonian era (1832), became a Democrat, and strongly embraced Jacksonian principles (which he apparently passed on to his son). He was active in politics 31It is interesting to note that Van Devanter and McKenna were self-made men and acquired wealth or power on their own- They were upwardly mobile. Clarke and Brandeis were not so much upwardly mobile as their fathers had already established a middle-class status. Hence, it may be possible that upward mobility with consequence status strains and insecurity (see Lipset in Bell, 1961:) may be a conservative influence as in the cases of McKenra and Van Devanter. Clarke and Brandeis (and to a lesser extent Hughes) may have been liberal because the upward mobility occurred on the part of their fathers and hence they were not subJect to this status insecurity (which might have been a conservative influence). However, they were probably socialized by their fathers in sympathy with underprivileged classes to give them a status-strain-free liberalism. 32m Louisville he had witnessed a bitter railroad strike. .nn-mrrw-fi" - .. use 33 and became a prosecuting attorney and a city Judge. Justice Clarke had been committed to civil liberties as early as high school (Warner, 1959). Basically, his early views and positions. in politics as a moderate Progressive Democrat are consistent with his views on the White Court and indicate what his values and attitudes were. Clarke owned a Youngstown newspaper and actively supported civil reform, electoral reform, tax reform, more equality distributed incame, municipal ownership of city railways and utilities, and lower railroad fares. He attacked the powers of corporate wealth. These views are con- sistent with Clarke's attitudes on the White Court, including his extreme anti-corruption position in scales 37 and MI and his rank as second only to Brandeis on Progressivism. Clarke also opposed monopolies and tariffs, supported civil ser- vice reform, and wrote editorials in favor of states' rights. He supported ballot reform, wanted to democratize goverrment , and opposed libel laws as a violation of free press. 314 Thus as a Justice he was the most extreme Justice for states' rights, and was third in favor of First Amendment liberties (1). His experience as a newspaper publisher probably reinforced his understanding of the necessity of protecting free Speech and a free press. He was also the most extreme Justice in opposing monopolistic practices (scale 21! and 30). _ He 33See Warner, 1959 for biographical material on Justice Clarke below. BuWarner (1959, p. 88) is not correct in assessing Clarke as a "nat- ioralist" . Although Clarke strongly supported Liberal Nationalism (he was fourth on that issue), he was even stronger in support of States Progress- ism (second). When it came to a choice between conflicting Jurisdiction, Clarke consistently supported state power. 459 opposed special privileges for business (as did Ohio Progressives in general) and thus his most highly rated value is General Welfare (which specifically limits such special privileges). During the 1896 Bryan campaign, Clarke showed his conservatism and "class preJudice" by opposing Ryan and supporting "Gold Derocrats" (Warner , 1959). Clarke was basically a Cleveland Democrat, attacking corruption and supporting hunanitarianism and the well-being of labor._ His law practice was primarily in the service of corporations, rail- roads, and wealthy clients both in Youngstown and Cleveland, but he did rot let this influence his political views. He was general counsel for the New York, Chicage, and St. Louis Railroad and the Nickle Plate Iail— road. In most workmen's compensation cases, he preferred to settle the claims out of court when possible. Clarke favored a uniform rate for all shippers and opposed rebates. He fought the discriminatory taxing of railroads as a lawyer, arri later on the Com was more conservative than usual on state tax powers. He favored unions as a bulwark against monopolies and corporate power. He sup- ported compulsory workmen's compensation acts and wage and hour laws. He was the most pro-labor Justice on the White Court, showing a definite sym- pathy for the lower class. (He was second only to Harlan on Libertarianism). He was the most liberal Justice on workmen's compensation cases (scales 8 and 9). Clarke received his party's nomination to the U.S. Seratorship in 1903 but lost to Mark Hanna. Clarke represented the moderate wing of #60 Democratic Progressives. In 1911! on McReyrolds' recommendation, Wilson appointed Clarke as a federal district Jddge. Wilson was satisfied with his progressivist: for he elevated him to the Supreme Court in 1916. Clarke was a "wet" on prohibition and drank liquor personally. On the high Court, he became the most extreme anti-prohibition Justice. Al- though on this issue McReynolds agreed with Clarke, his personal antipathy to Clarke led him to disassociate himself from Clarke's dissents. Clarke, as a district court Judge, had taken great pride in natural- ization proceedings, either in remembrance of his father's origins Cr in sympathy for the immigrants' underdog status. Thus when on the Supreme Court, he was most extreme in supporting the rights of aliens, including Chinese aliens. His defence of Indian rights placed him third on scale 5. Moreover, he and Brandeis were the most libertarian of the Democrats in supporting the civil rights of Negroes (scale 15).35 His second rank on Libertarianism affirms this humanitarian support of underprivileged and oppressed groups . Clarke also believed that the property rights of the rich must be protected so as to protect also the rights of the poor (Warner, 1959, p. 69). Hence, Clarke is also the most extreme protector of Civil Liberties: Progerty 51.52133 (3). But he believed that the poor should receive their fair share of comfort. Clarke's views supported the Randeis and Cardozo principle of sociological Jurisprudence (as did McKenna, Day, and Pitney to a lesser extent). He sought social Justice and social welfare in his decisions and 35Although these claims violated Clarke's arri Brandeis' strorg states' rights positions. #61 believed in evolutionary progress. He chose these values rather than the application of the common law and precedents. Evidence exists that he was "Open-minded," that he continually reevaluated his ideas in light of new information and new events (Warner, 1959). Clarke preferred a strict interpretation of franchise grants (which resulted in his position as the most extremely liberal Justice on Contract Clause cases, scale 12). He construed patent rights narrowly as only requir— ed to promote the progress of science rather than the privileged rights of the inventor (placing him third on Patents, scale 29). His position on the First Amendment (scale 1) was only third in sup- port of its liberties due to his support of Wilson's war effort and a dislike of radicals and advocates of unlawful methods (Lerner, 1951}; Warner, 1959, p. 9b). Although Clarke was a moderate Progressive off-court he was one of the most liberal Justices on the White Court. McReynolds' constant crit- icism became so intolerable that Clarke resigned in 1922 (Murphy, 1961!). He lived until 1945. His presence on the Hughes Court could have averted the Court-packing battle as he later endorsed most of the New Deal. Clarke's liberalism seems related to his parent's low-status back- yound , his urban experience and environment and his Democratic philosOphy. His father had been a Jacksonian. Clarke often in pre—Court (statements re— ferred to basic "Jeffersonian truths" as supportive of Delocratic Progress— ive programs (Warner, 1959, p. 22). Hence, he was a Progressive in ~. philosophy, based on J effersonian—J acksonian ideology. His values were General Welfare, equality, liberty, democracy, and states' rights in that order, and he was slightly laissez-fairist and strongly anti-Darwinist. #62 Brandeis. - Justice louis D. Brandeis has very few votes rot ex- plained by the scales. Only Day and Van Devanter have lower rates of NSR's. Half of mandeis' NSR's, furthermore, result from the same series of cases. Brandeis' main values are equality (Progressivism), liberty, deroc- racy, general welfare, and states' rights. He is relatively consistent and extreme on these issues and shows few ABR's on these issues. Most of his NSR's involve the uprolding of necessary and temporary wartime powers. He would be expected to support these powers as a loyal Wilson appointee and Demcrat. Moreover, as a confidant of Wilson on the bench, he probably had a land in formulating some of these programs. They include wartime price controls which result in NSR's in cases '408 to 1415 inclusive in scales 3 and us. An NSR in case 127 in scale 3 upholds wartime prohibition. His three NSR's in Antitrust (30) in cases 139, 192, arri 601 involved price fixing among companies which he approved because they gave small businessmen a chance to survive in competition against big business (Ierner, 19511, P.xl; Mason, 1916; Murphy, 1961!, pp. 1148-150). He apparently valued smallness in business over competition. His NSR in case 3914 in scale 21 is explained by his preference for state power in rate—setting over national and does not show up as an NSR in State Rate Regulation (‘16). Similarly case 118 in scale 1&6 is an NSR because he saw this case as more properly a Contract Clause (12) case, and case 85 in scale 32 was seen as properly a Commerce power case (13). He was reputed as attempting to be fair to business and railroads in rate- setting cases (Mason, 1946) rather than punitive as Clarke seemed to be. This may explain NSR's in rate-setting cases such as 183 in scales 32 and “63 35 and case 123 in scale 18. handeis was somewhat anti-government in cases rot touchirg the liberal dimension which may explain an NSR in case 393 in scales 3 and 18 where he upheld a land claim in the Philippines against the federal government. A case involving states' rights resulted in an NSR. Case 209 in scale 9 involved Brandeis' opposition to federal Judicial power over state courts . Brandeis has much in common with Clarke in terms of his political and social environment (as noted in the discussion of Clarke) and partic- ularly with respect to their attitude-value systems. Bothe were sons of immigrants wro were self-made men; both lived in the Midwest in urban environments and became politically active in the Democrat party.36 ‘ Both Clarke and Brandeis were Progressives with their philosophy rooted in Jeffersonian-Jacksonian Democracy (see Pearson and Allen, 1937, p. 163). Clarke does not seem particularly more "liberal" than Barrieis. He is much more extreme on the General Welfare attitude system (opposed to special interests in Conservation, 1’4, land Claims, 16, and Patents, 29, and more punitive in condemning corruption, scales 37 and All), otherwise their rankings of values are identical. . Their attitudes, and value struc- ture as revealed in Figure 21 are quite similar, irriicating the same under- lying liberalism. Clarke is slightly more liberal on Libertarianism, in supporting liberty and labor interests more strongly, on Darwinism, and in supporting states' rights. He seems more sympathetic to lower-class inter- ests. Brandeis is more liberal on.Progressivist.issues.and.more.opposed.to *— 36See Mason, 1946, for biographical data on Brandeis below. #6# Judicial power. Brandeis is the most extreme Justice on bothissues. Brandeis came from a family of Prague Jews wl'o were fairly well educated and cultured. His father started out as a grocery store clerk, eventually owned his own store, and later became a grain and produce mer- chant. He must have undergone status deprivation as an immigrant and a Jew, and there is evidence that Brandeis himself later felt samewhat isolated from middle—class society (Mason, 196, p. 93). Hence, it may be concluded that Brandeis was politically socialized by a family trat was of low status. It may be suggested that he was also influenced by Europe- an socialistic ideas prevalent in the former country of his family. He was also apparently influenced by his mother' s generous and hmanitarian im- pulses (311151;). Politically, his father was a Republican and an abolitionist in Kentucky.37 Brandeis originally was a Republican. He left the party in 188# over issues of corruption and called himself a Democrat in 1905. How-A ever, he supported Progressives of both parties.38 He clearly aligned him- ' self with Wilsonian Democracy in 1912 (Mason, 19#6). Hence, Derocratic inclinations seemed to predomirate in his philosophy. Brandeis became a millionaire by successfully defending large corpor- ations, railroads, and the wealthy in his Boston law practice. He success- fully exploited his Harvard connections to achieve his wealth. ‘ He had been 37It is of interest to note that of the eight most libertarian Justices, five, including Brandeis, were born in the South. The only Southern non- libertarian Judge was McReyrolds whose dogmatic personality precluded a lib- ertarian outlook. The only ron-Southern libertarians were Clarke, Holmes, and Hughes. It may be possible that Southern views of individualism and ' antagonism to government were an important regioral socializing influence in favor of libertarian ideals. 8 3 He led been offered several nomirations to public office by the Dem- ocratic party in Massachusetts. 133‘? Li i‘re t «A..— mid #6 5 counsel for the New Haven Railroad and the United Shoe Company. His political activities ani concerns presaged his later liberal attitudes and opinions on the Supreme Court. Although he was a million- aire, he used his wealth to become a "peoples' attorney" defending popular causes, and fighting monopoly and exploitation. He mediated labor dis- putes, was counsel for shippers before the I.C.C. and later was counsel for the commission, represented states in defending Progressive legislation from attacks on their constitutionalism, brought suits against moropolies and attacked them in articles, defended the National Consumers league, and fought substandard factory conditions, fours and wages. He fought for liquor regulation, municipal reform, and civil service reform. Brandeis was interested in the care of pauper-s and methods of fight- ing unemployment as a solution to poverty amorg workers. He opposed cor- ruption in politics and business exploitation of natural resources. He favored civil service reform. He feared trat democracy was threatened by capitalism and corporations and their excesses and injustice. He favored unions and collective bargining as a bulwark against both socialism and corporations . He opposed governmental ownership of industry but supported economic experimentation and social reform. He felt trat he could not stand aloof from the social problems of his day. Brandeis exposed the life insurance business as an unprincipled "racket" and worked his whole life to combat its abuses. He worked for and demanded trat corporations open their books to public scrutiny to expose their financial shenanigans, their inefficienty and unsound practices. He fought attempts by utilities to gain excessively profitable franchises #66 through bribery of public officials which would cheat the public. He also fought attempts by the New York and New Haven Railroad to establish a railroad monopoly in New England. Brandeis also opposed monopoly because he felt trat many corpor- ations had become too big to be efficiently managed. He used information from their own records to prove this, concluding tlat only. regulated com- petition would result in a maximum of efficiency. Monopolies grew only because of the aggrandizement and thirst for power of their owners. Inter— locking directorates and other methods merely milked the public of un- warranted profits. He Opposed cut-throat competition, however, arguing trat this destroyed small, competitive units. For this reason, it is Seen trat Brandeis was fairly moderate (third) on the Antitrust scale (30). Randeis saw the moropoly issue as the crucial issue of the 1912 election. He criticized the Progressivist party as approvirg moropolies as part of an inevitable and beneficial trend, and hence supported Wilson. Brandeis helped implement much of the Progressivist program on the state and local level in Massachusetts and Boston. He favored local sol- utions to the social problems which concerned him (Swisher, l95#). He had had opposed the growth of federal power, until he saw trat state solutions were not adequate. Hence, his position was consistent with the findings that he was states' rights oriented. (He was ranked second on the Federal- ism attitude system in favor of state power.) His state-orientation might well be explained in terms of the fact that his experience in public affairs was primarily at the state level and he did not become involved in ratioral politics until 1911. His inherent opposition to centralization in economic #67 and goverrmental matters seemed crucial to his position and seems likely due to his libertarian and irriividualist outlook which was grounded in J effersonianism . Brandeis became one of Wilson's key advisors early in his admin- istration and continued in trat capacity after Joining the Court. He is reputed to rave been the chief architect of Wilson's New Freedom (Swzlsher, l95’4, pp. 563-567). In advising Wilson, he helped create the F.T. C. and the Federal Reserve System. He helped write the Clayton Act, and planned the enlargement of the I.C.C. Having helped implement these programs, it is entirely logical trat he would (and did) help legitimize them by voting to uphold Progressive programs on the White Court. Wilson reputedly wanted Brandeis as his Attorney General but backed out when confronted by personal opposition to Brandeis for being too lib- eral and raving made too many enemies in his role as "peoples" attorney Nevertheless, he appointed Brandeis to the Supreme Court in spite of a second outcry of opposition. Brandeis was confirmed by a close vote, strictly on party lines. The fact trat Brandeis was such a central figure of the Wilson administration may well have made him an influential figure on the White Court. He was already a close friend of Holmes. 'Ihat friendship had last- ed since 1879. Holmes praised his "great work with high motives," and his "accuracy of detail" (Howe, 1961, p. 191). Eandeis was also friendly with Clarke and White (Mason, 19#6, p. 629). Brandeis had already perfected the technique of using research into data on social problems to persuade thepublic, courts, and commissions to #68 make more intelligent decisions on policy matters. Before Joining the Court, he had used sociological data to persuade the Court to take Judicial cognizance of things beyond law and logic. He used the same technique after Joining it, marshalling evidence to support his opinions. He used the dissent as an educational device to enforce and illuminate the law. The persuasiveness of his methods with other Justices ras been documented (Mason, 19146, p. 245-253, 517-518, 628-629). This technique as a con- tribution to Sipreme Court policy making has had an impact which far out- lasted his tenure on the Court. Brandeis was basically opposed to the use of Judicial power. He was the most extreme Justice in opposing that power. He reputedly had great faith in public opinion. He opposed the use. of the injunction in labor dis- putes because, he argued, it‘undemined public confidence in the courts. He also strongly argued against rendering advisory opinions or deciding more in a case tran was neCessary. (See Ashwander v m. 297 US 288, 3115.) He would presume the constitutionality of a law if it were necessary to achieve a permissible end. This position seemsbased on a basic adher— ence to traditional democratic values and hence a dislike of autroritarian decision making. Nonetheless, Brandeis seemed to accept the quasi-legislative capacity of the Court, particularly when it came to endorsing programs which he per- sorally supported (Kelly and Harbison, 1963, p. 688). He, too, read his own economic views into the Constitution (Mason, 19#6). Brandeis felt trat individual rights were far superior to prOperty rights. In First Amendment issues, he with Holmes, helped lay the ground- work for a preferred status for the key democratic freedoms of speech and #69 press. Mason (19%, p. 578) is correct when he holds that Brandeis was even more protective of free speech than Holmes. His seperate dissents were clearly more extreme in defence on trose rights (see 65 L.Ed. 705) and he dissented more often (see 65 L.Ed. 287 and 63 L.Ed. 211). Brandeis may have been more protective of small business tran he opposed to big business (see cases 139,. 192, 601 and 171). His father had been a small businessman who had suffered business reverses and many . Jews are also small businessmen. Hence, he may have been particularly sympathetic to their plight. His insistence on the value of stall busi- ness units and competition and his opposition to the "curse of bigness" may well rave been related to this sympathy. Moreover, he seemed to value smallness over competition in the several antitrust cases mentioned above . Basically Brandeis seems to be a Progressive in philosophy valuing highly equality, liberty, derocracy, General Welfare, and states' rights in trat order. M. -- Oliver Wendell Holmes' main values are Darwinism, democ- racy (anti-Judicial power), equality, liberty and states' rights. However, the donirant reasons for his NSR's in‘the scales seem to be civil liberties, states' rights, and to a lesser extent anti-Judicial power and civil rights. Civil liberties claims were clearly of high priority for Holmes. Such cases seemed inevitably to cause NSR's where they involved other, secondary issues and also appeared in other scales. Examples are: case 532 in scale 37 , cases 369 and 370 in scale 33, case 171 in scale #0, and case 537 in scales #1 and 65. Moreover, case 211 in scale 35 might be considered a First Amendment case for I-blmes as it involves state regulation of communi- cations (telegraph companies). __— lV70 Holmes' support of states' rights also seemed to daminate his be- havior, causing NSR' s in several scales. These include case 318 (involv- ing prohibition) in scale 5, case 561 in scale 7, case 331! in scales 7 and lo (involving labor), case 350 in scale 28, case '80 in scales 3, 16, 28 and 33, and case 185 in scales 20 and 1:1. Case 9 in scales 33 and 38 results in NSR's which also seemed to be caused by a states' rights issue. Holmes seemed to feel that Congress did not have the power to delegate power to the states to regulate interstate commerce. Holmes' attitudes on labor seemed to predeninate over other issues, causing NSR's. Thus case 311 in scale 10 involved the upholding Of a state labor safety law and case 3314 in scales 7 and 10 involved two issues particularly salient to Holmes, labor and states' rights. Case 331} (goppagg v _Ka_n_sa_s) involved a state law forbidding "yellow dog" contracts in which he upheld the law . ' Civil flights (15) seemed a dominant issue for Holmes. It might be thought to be motivated by the states' rights issue. But in a federalism scale (33) these cases appear as NSR's. Thus, Holmes seemed to be anti- Negro in line with his Darwinist philosophy. Consequently, civil rights explains NSR's in cases 215, 250, and 3214 in scale 33 as well as one in case 215 in scale ll, case 250 in scale 65, and case 561 in scale 7. It appears that this Darwinism predominated over his civil liberty (scale 14) and labor (scale 7) attitudes. His one pro-Negro vote was a concurrence opposing state insistence on segregation in a private college (case 571 in scale 15) . Holmes' anti-Judicial power attitude appears to cause NSR's in case 3147 in scale 33 and case 185 in scale 20. He did seem susceptible to 1:1 b.1103?! [If Ilulp... .‘l‘sl‘lll. .. #71 humane considerations in his voting.” NSR's result from his distinguish— ing personal inJury claims from property damage claims in case 366 in scales 9 and 27 and case 379 in scale 27. He found personal injury claims more appealing . He seemed to have a narrower conception of state commerce power to tax out-of-state property than other Judges. Thus NSR's in case 111 in scale 12 and case 112 in scale 36 do not appear as NSR's for Holmes in scale 35. Similarly case 187 in scale 46 appears to Holmes to involve a commerce issue (scale 314). Other NSR's seem due to a different perception of the issue of the case than other Judges. Case 556 in scale 35 fits better for Holmes in scale 146, case 186 in scale 10 fits in scale 26, a.nd case 1421 in scales 20 and 1 fits better for Holmes in scale 37. Darwinism (efficiency) was not only Holmes dearest value, it was his predominating ideology.39 It appears to lay the foundation for his second value, democracy or anti-Judicial power, which in turn helps ex- plain his support of Progressivism (or equality) and states' rights. Moreover, Darwinism shaped his views on the rights of Negroes (scale 15), Indians (5), and 5.1.1228. (6), as well as first Amendment liberties (1), Labor (7), antitrust issues (scales 22, 21}, 29, and 30), liability issues (25, 26, and 27), and General Welfare issues. His tenderminded libertarian position on Criminal "Due Process liberties (ll) seems somewhat incongruous with his Darwinism and suggests an element of humanitarianism in his person- ality. His position on civil liberty seemed one on which he was not de- tached and one which was "worth fighting for" (Howe, 1961, p. 25). 39See Howe, 1957, 1961, 1963; Mason, 1946; Frankfurter, 1961; Lemer, 19514; Rogata 196“- #72 Hence, if Holmes‘ Darwinist outlook could be explained, a central element of his philosophy can be accounted for. Holmes' was basically a philosopher. The strong intellectual ele- ment in his family and his life prampted him to construct a carefully formulated philosophy with a relentless drive for logical consistency. He had the most carefully thoughtout philosophy of any Justice on the White Court. His drive for consistency required that he fit all elements of his experience, knowledge, and basic beliefs into one integrated whole. ' Epistemology and metaphysics were also required to round out his philosoplw. A11 evidence had to fit in his philosophical framework. None could be omitted. No compartmentalization was tolerated. The only logical frame- work that could fit these requirements for Holmes was Darwinism. Darwinism explained his personal experiences, suggested an epistemology, and ex- plained the natural laws of the universe for Holmes. It also incorporated a basic fatalism and Malthusian outlook by Holmes into his logical frame- work . What personal experiences may have suggested Darwinism as an ex— planatory ideology? Several times durirg the Civil War experiences of his LIO early life, he had the unique experience of seeing his war comrades decimated while he survived. He also survived three near-fatal wounds. How could he account for such shattering experiences? The explanation must have suggested itself that was both fatalistic and Darwinist. He ~ 111 survived because he was "the fittest," trnt he was destined for great uoHolmes was 20 at the time. “In later years, he held that war was a mechanism of natural sel- ection. Howe, 1961, I, pp. ug—uu 1973 things. Holmes must have wondered why his family and himself rad such intellectual ability. Again the answer may have suggested itself: they were "the fittest" and therefore deserved such prestige and deference. His family was aristocratic (National (lclbpegia, XXVII, p. 2), and Holmes needed to find a rationale to Justify their superior outlook. Also in- fluential on Holmes' thought was his grandfather, Charles Jackson, who believed in natural law. Holmes' philosophy also needed such natural laws and the laws he selected were Darwinist (Howe, 1957 ,‘ p. 181).. These nat- ural laws made change and evalution inevitable (Frankfurter, 1961, espec- ially p. 153). 1:2 Holmes fatalism has been documented. He is reported to have stood up in.a battlefield with bullets whizzing around (Howe, 1957, pp. 102-103), which illustrated his detached and fatalistic outlook. ‘ His view of epistemology was also related to evolution. We learn from experience so that both ideas and organizations evolve to a higher 1 and more progressive state. All components of society are so evolving. This includes the evolution of our race, our ideas, law, as well as econo— nuc and political institutions. The role of’a Judge is to facilitate this process or at least not impede it. Hence, we must look to the fixture and make possible the logical culmination of evolutionary processes. Hence, political institutions should not impede the growth of large economic units nor stifle the evolution of ideas and the victory of superior ideas. Nor should Judges stifle and restrict the democratic process in its ”Holmes said "whatever rappens is best as it is in accordance with a general 1a ". Howe, 1951, p. 110. He also said "I see the inevitable everywhere" . Rogat , 1961! . L__h vi #71} evolutionary function. They should allow institutions to evolve into ones better suited to our experience and progress, and permit experiment- ation to take place so that progressive ideas and methods of solving our problems will be allowed to prove themselves superior to inferior ones. Holmes' ideas on race were clearly Darwinist. He at times approved 'of war as a process of natural selection. He approved state eugenics laws (Howe, 1961). He felt that the Germans were a naturally superior race, but that orientals were inferior (I-bwe,’ 1961, I, p). 2211; II, p. 14). He apparently approved of legislation discrimflmting against a minority (presumably inferior) race. Thus, he was unsympathetic to Negro Civil fights (scale 15); 'Eiag rights (5) and the rights ofm_ (6). ."A racist, Darwinist view explains these positions. There appeared to be three basic elements of Holmes' Darwinism as revealed in his Supreme Court decisions. These involved his attitude to- ward trusts, that toward free speech and press, a.nd his antipathy to Judicial power. or these the element on which he appeared most extreme was his position on trusts and their economic regulation. On the Darwinism attitude system (half of which component variables involve economic issues), Holmes was the second most conservative Judge. It was Holmes' most highly ranked attitude system in terms of his ex- tremity of position. Holmes is also the most extremely conservative Jus- tice on the White Court on antitrust (30). Holmes favored bigness in econemic units. On this issue, he allowed his personal bias to overcome his usual deference to the decisions of more democratic branches of goverrment. On this issue he split sharply with “75 Brandeis who felt that monopolies were inefficient and that campetition and small economic units promoted economic efficiency. Holmes felt that free competition was a necessary part of economic life andthat freedom included the right to combine economic units if it was necessary for survival. This was as true for labor combining into unions as it was for business. He was unsympathemc to governmental inter- ference with this econamic struggle of the "fittest". He felt tl'at mono— polies avoided the wastes of competition in advertising and the duplication of facilities, and that they would result in the greatest return for Amer- ican labor. Since monopolies and big business were winning the battle for competition, they had proved that their form of organization was the most efficient. Thus government must not intervene in favor of less efficient forms. Furthermore, the increasing might and scope of combinations was leading to the "organization of the world", an inevitable and beneficial result and a sign of progress.”3 Holmes, then, also supported private interests in obtaining special benefits from goverrment or the public domain. This explains his position as the third most conservative Justice on the General Welfare attitude system. They were entitled to these benefits because they were power-ml (having proved so by seizing them), and the facilitation of these process helped these interests move to their inevitable position of deninance. Holmes' fir-m convictions supporting free speech and free press were also derived from his Darwinism. Only if the struggle of ideas were left u3See Lerner, 1959, PP. 109, 219; Mason, 19%, p. 575; Howe, 1961, p. 121! ; Swisher, 195’4, pp. 516-528; Rogat, 1961-l, pp. 216-247. #76 unstifled could the most progressive ideas win in the struggle of the market place. Hence, again the most beneficial forms would evolve into a progressive, enlightened world of ideas. Truth would prevail only in a Darwinian struggle of ideas (Kelly and Harbison, 1963, pp. 673-676). As a skeptic, he felt that one cannot know absolute truth. Hence, one cannot be so sure of ones own ideas that he can stifle opposing ideas (Frankfurter, 1961). He had felt his own convictions crumble under the impact of reality (Howe, p. 285). He had undergone the pangs of his own self-doubt and from them forged the conviction that no one can be so sure of his own position that he can deny others their right of self-expression. The fervor and duty that the dognatist applies to his own convictions, Holmes applied to the cause of keeping the channels of ideas Open. It is of interest that Holmes in his college days witnessed the un- orthodox and maligned opinion-holders of those days, the abolitionists, being threatened by mobs. This intimidation to prevent their ideas and conscience from being expressed was quite distasteful to Holmes, so that he personally helped protect them from the mobs. Yet their ideas event'- ually predominated after a war which Holmes helped fight (Howe, 1957). It is also of interest that Holmes was disillusioned by the horrors of war. After witnessing the deaths of his comrades in three bloody battles, in one of which he saw his charges being blown apart by artillery, and after undergoing three near-fatal wounds, he finally made a "separate peace" and left behind the horrors of war in 1863““ (Howe, 1957). When he expressed his disillusionment, he was accused of a lack of patriotism. He may well have sympathized with the doubts of the 1917-1918 pacifists on the [ml-11$ commission had expired, but he failed to request a new one. #77 desirability of war. During Holmes' Civil War experiences, he was not an abolitionist and had many doubts as to the cause for which he rad undergone much hardship. Yet his sense of duty impelled him to go on (Howe, 1957). This character- istic permeated Holmes behavior on the issue of Judicial power. He had many doubts as to the efficacy and wisdom of the Progressivist programs he had to pass on, but he felt trat his duty lay in allowing the democratic branches to exert power and he firmly f01lowed that duty (except in anti- trust related issues noted above.) Although Holmes felt that governmental actions interferred with the "natural laws" of Darwinism, it was not up to the Courts to set thirgyfigrr. These actions must be given the crance to prove themselves to be error or wisdom.)45 The Darwinist struggle must also permit these government actions and laws to evolve to the best forms through the democratic process. Holmes again suffered self-doubt as to his own ideas on the subJ ect. He had lived in an Eastern urban environment where Pfogressives constantly challanged his ideas. Brandeis, on the Court, marshalled much evidence to contradict his ideas. Hence, he felt that as Courts lack the fact-finding facilities that legislatures do , Judges must bow to their decisions (Mason, 1946, p. 555), and let "the crowd" have what they want. (Also see lbwe, 1961, II.) Holmes felt that Judges' decisions should reflect the dominant power in society and trat this would facilitate the Darwinism process (Howe, 1963, p. 58 ; Rogat, 1961-I, p. 2514). They should enforce the wishes of society. “SI-blimes' attitude on prohibition also seems to reflect this deference to public wishes. He opposed it personally, but since the public wanted it, he voted to uphold prohibition. National ‘gyglgiedia, XXVII, 2. p we If public needs result in legislation, Judges should permit the expression of these needs (Lerner, 1959, p. 136). Judges and the law must recognize Change, again to permit the evolution of the law to occm'.(Franld‘urter, 1961). Any intransigence on the part of the courts, moreover, might, at best, result in public loss of respect for the courts and, at worst, result in revolution (Pearson and Allen, 1937, p. 73). Past law was an organic growth from experience. Judges tended to allow limits on their personal experience to become limits on the Consti- tution. The answer was to broaden their outlook to prepare for future needs. Holmes, like White, wanted a nation adequate to its great tasks. Holmes' contribution to law was considerable. He hoped to make law an intelligible science (Howe, 1963, p. 20). His mind was dammted by the scientific point of view; he was a positivist and a pragmatist. Mere legal forms and useless tradition was to be discarded if they did not con- tribute to the organic evolution of the law. The law profession should reJect the myth of certainty in the law and realize that the courts are making policy. They should then consider the real implication of their decisions. His discovery that Judges' decisions are subJective has pro- foundly influenced the study of Judicial behavior, which has validated his ideas on the subJect. Holmes was chosen for the Supreme Court by Roosevelt on the basis of his pro-labor rulings (Murphy and Pritchett, 1961, p. 81). His labor views were also based on Darwinism. Labor may participate in the economic struggle by whatever means available, by combination or peaceful picket- ing. They represent power and the courts must give expression to power ‘V79 (Howe, 1961, II, p. u5;-Lerner, 195A, p. 109). Holmes seemed seemed moderately sympathetic to states' rights. This seems somewhat incongruent with his political party and Darwinism. As a Republican and Civil War veteran, he might be expected to be a strong nationalist. But party ideology seemed to have little or no im- pact on Holmes whose basic philosophy was shaped by more profound concerns. Darwinism might conceivably call for the support of the most efficient form of government, a centralized one. Nevertheless, Holmes appeared to support the rights of the states to experiment and hence participate in the evolution of political ideas (Rodell, 1955). He was also supportive of the right of the democratic branches to exert power, avoiding gaps of. power where no government could legislate . Hence , he supported state pow— ers. Holmes clearly, however, supported State Progressivism more strongly than Liberal Nationalism. Personal influences affected Holmes' outlook on states' rights. His grandfather, while a Federalist, was something of a "states' rights" Federalist. His faction saw themselves as Massachusetts citizens first, Americans second, and had participated in the Hartford convention heresy. His ambition was state centered, not national, and he saw the federal gov- ernment as the power center for Jacksonian, not New England's, goals (Howe, 1957, pp. 180-181). Holmes himself seemed also primarily state-oriented. He had spent 20 years on the Massachusetts supreme court, being a state official longer than any member of the White Court. It would be logical to assume that he. thus would continue a states' rights outlook and orientation. 1&80 In liability and patent cases, Holmes was able to assert his ideas his ideas about protecting property rights. In line with his Darwinism, be consistently favored the large property owner against the small. He consistently supported the rights of the inventor in patent cases and the defendant in liability cases. He had hoped to minimize uncertainty in liability cases by reducing the role of the Jury (Howe, 1963, II, p. 250). He insisted on conclusive proof of fault or negligence. He attempted to formulate a common law concept, but in reality substituted the "harsh" rules of Massachusetts which he had followed in that state court“6 (Lerner, 195“, p. 203). Holmes had reputedly influenced White, McKenna, Pitney, Clarke, and Brandeis to the view that since a federal common law did not exist, they must find the appropriate common law of the state (includirg legis- lation), and apply that to the case at hand (ibid. ). Holmes reacted with great consistency to the component variables in the attitude systems of Darwinism and Judicial Power. But he did not do so in Libertarianism, suggesting that he did not perceive this as a framework within which to organize his attitudes. This explains his relatively low ranking of liberty as a value. He did not include the constituent economic variables as properly part of Libertarianism nor the variables involving the rights of aliens or the colored races. He did , however, react to First Amendment (1), Criminal Due Process (A) and 13993 (7) in a consistently libertarian fashion. Since scales 1 and 7 are related to Darwinism, how can his attitude to scale 14 involving due process in criminal trialsbe accountedfor? It may be that he felt that “5Comare with Pitney's position who followed the soft rules of New Jersey. #81 the law was evolving towards the greater protection of individual rights and desired to hasten the process. He considered these ideas of liberty as "more civilized" and admired the tradition of E'glish law in these matters (Howe, 1961, I, II; Frankfurter, 1961). He favored removirg the concept of vengeance from criminal law and retaining only the concept tint it should guide conduct by defining rules tint should not be violated. Hence, clearly defined criminal laws must be upheld to increase the pre- dictability of the law and equally scrupulous adherence to due process must be followed (Howe, 1963). In civil liberties, Holmes seemed to allow highly valued persornl ideas to influence his behavior, betraying a humanitarianism behind his skepticism (see Swisher, 195A, p. 509). In certain persornl inJury (cases and workmen's compensation cases, a similar humanitarianism seems present in his behavior. His conservatism in general seems due to a Malthusian outlook tint nothing can help the lot of the common man“? (Mason, 19%, p. 57“; wae, 1957, p. 63; 1961, p- 12")- Holmes applied his Darwinist outlook to his own life. He had to prove to himself that he was one of the Darwinist elect, hence, he was ruthless in his ambition for intellectual eminence (Howe, 1963, p. ‘49). He had to prove himself in scholarly pursuitsas a counterpoise to the distinction of wealth (ibid. , p. 258). He became withdrawn and isolated himself from his family and friends. He published several articles and works of distinction on law after studying its origins and history. m WAnother element in his Darwinism may have been the need to account for this dismal outlook coupled with the slight prospect of improving mnn's lot through evolutionary progress. #82 In his few years in law practice he represented railroads, banks, cormercial and mercantile interests, often in the admiralty courts. He represented no workers or criminals, was involved in no large social or political issues, and showed no social conscience. He, instead, sympath- ized with and respected his prominent, wealthy clients (Howe, 1963, pp. 107-119). He fit well the description of a conservative, detached scholar. An aristocratic outlook and values seemed to predomirnte. He taught for a year at Harvard, and was appointed to the Massachusetts supreme court in 1883 where he spent 20 years, havirg been made chief Justice in 1899. Holmes' grandfather had been. a quite conservative Federalist . His father was not a reformer, but became an abolitionist during the Civil War. Holmes himself appeared to be a lifelong Republican, having voted for Lincoln and consistently supported Republicans from Hughes to Ibover (Rodell, 1955). He did not participate in politics, however, and clearly formulated his philosophy withoutregard to party principles. Holmes, then appeared to be a Darwinist and constructed from tint ideology a strong democratic and anti—J udicial power philosopiw. He also firmly embraced civil liberties and free speech as values. He was moderate on most other issues. However, and seemed to be close to the position of the New Natiornlist brand of Progressivism, although an ele- ment of conservatism and support of state powers is present. His aristocratic, upper-class background influenced by his intellect- ual urban environment seems to help account for his philosOphy, although Holmes seems the least affected of any Justice by his environment. CHAPTER 10 CONCLUSION In considering the trend of opinions and attitudes of the Supreme Court, most observers see the 1910—1920 White Court as a brief liberal interlude between two conservative periods of Court History.1 There is evidence that the actual origirnl liberalizing influence on the Court was Theodore Roosevelt's appointments. He replaced Shiras with Day, Gray with Holmes and the conservative Brown with the liberal Moody. Taft ' s appointments were not noticeably more liberal in general than the Justices whom they replaced, however. Thus, the liberal Harlan was replaced by Pitney who was similarly liberal. Fuller was replaced by a more conservative Van Devanter. Lurton replaced an equally conserva- tive Peckham. The liberal Moody was replaced by a conservative Lamar and the quite conservative Brewer was replaced by a very liberal Hughes.2 The total effect of 'Iaft's appointments seemed to leave the Court as he found it ideologically. A liberal trend on the part of public Opinion may have influenced the Court during Taft ' s administration, however. lRodell, 1955, p. 188. Spaeth, 1966, p. 10 typifies the White Court as a "respite" from the "the doctrines of laissez-faire." 2Ideological positions of Justices are based on a scale of economic cases of the October 1908 and 1909 terms. See Appendix XI. Also see Paul, 1960. #83 #8# Wilson's appointments added strergth to the liberal bloc. McReynolds seemed more conservative than Lurton but Clarke was even more liberal than Hughes. The quite liberal Brandeis replaced the conservative Lamar. Un- forturntely several Republican Judges became more conservative as Wilson rather tian a Republican was the natioral Progressivist leader.3 This in- cluded McKenna, Day, and Van Devanter. However, Holmes became more liber- al under Brandeis' influence to partly counter this trend. If we divide cases in the various periods into liberal and conserva— tive outcomes according to our Cinpter 2 definitions of this continum (in- cluding civil liberty and Civil rights claims as liberal outcomes when they are upheld by this Court), a rough measure of the trend of liberalism of the Court may be determined. hiring the October 1908-1909 terms, lib- eral outcomes made up #6 per cent of the cases defined on the liberal-con- servative dimension. In the first period of the White Court (1910—1915), #6.# per cent of the outcomes were liberal and in the second period (1916- 1920) 142.6 per cent of the outcome were liberal. The first period of the White Court seems not significantly more liberal than the latter part of the Fuller Court. The loss of Republican support for Progressivism may have led to a more conservative second period; however, it is likely tint the wartime Wilson measures far exceeded the exertions of power ruled on in the first period of the White Court. The second period cases seem seem to be more extreme stimuli than those of the first period. Hence, the liberalism of the 1908-1920 period seems fairly constant. In 1922-1923 3During the second period of the White Court, when most inputs were no longer cases arising under the Taft administration but those arising under Wilson's administration. #85 when Sutherland, Butler, and Sanford replaced Clarke, Day and Pitney, the conservative control of the Court became pronounced as three more conservative men were added to the Court. 'Ihey replaced two of the three most loberal Justices on the White Court, Day being the fifth most liberal Justice. Wilson' 5 appointments , however, seemed to inve quite an impact on the Court in the area of supporting state powers in conflict with fed- eral and in denying power to the courts over elected branches of govern- ment. All three of his appointments seemed committed to these obJect- ives. Roosevelt 's appointments were much more nat ionally—oriented while Taft ' s appointments generally upheld Judicial power. The White Court held few rational actions unconstitutiornl. (he law so invalidated was the Child labor Act in the case _H_a_1rn__mer v Dagenhart (62 L.Ed. 1101). After the 1912 election there was little criticism of the Supreme Court. Some criticism was directed at the aforementioned case, but the entire 1898-1921 period was one of "low frequency" in efforts to curb the Court. Only six Court-curbing bills were introduced during the period (Nagel in Becker, 1969, p. 36). The 1916 Income Tax Law involving stock dividends was invalidated (6’4 L.Ed. 521). Also the Lever Food Control Act was found unconstitutiornl timee days before it was to expire (U.S. v Cohen Grecery, 65 L.Ed. 516). These seemed to be of minor importance as impediments to rational policy- making. Warren (1926, pp. 744—746; 1913) and Mowry (1958) found tint it was conservative state courts that were placing sinckles on state powers during #86 this period, not the Slpreme Court. The latter was a bulwark of the state police power, a liberal force, and increasingly alive to the new conditions and needs of the ration (Warren, 1926). Link and Catton (1967, p. 113) found that the Supreme Court evidenced willingness to carry out the mandate of the Sherman Act and other natioral legislation but tint it was undermined by administrative subversion.“ Moreover, it accomodated "constitutional doctrine to most Progressive regulatory concepts by 1917." (Ibid., p. 115). The White Court extended natioral powers over state Jurisdiction in Commerce areas, and extended the powers of all levels of goverrment to solve social and economic problems. It Closed the gap between federal and state powers so tint rather than leaving areas where neither govern- ment could legislate, it left areas where both had power, such as the regulation of business and prohibition. Tins it contributed to the rat- ional federal power, especially through the Commerce Clause, which includ- ed a federal police power, increased taxation and regulatory powers, am permissiveness toward state power used for the general welfare. The Court validated many prohibition laws, and upheld income tax cases, wartime con- trol of railroads and utilities, and the federal regulation of railroad em- ployee wages and hours, food and meat standards, narcotics, and white slavery. It also approved federal treaty power suprerncy , the Bills of lading Act, expiornge and selective service acts, and anti-monopoly powers. In short it validated most of the Progressivist program and prepared the way for necessary rntiornl powers for America to compete in the Twentieth Century world . “lower federal courts were also a conservative restraining influ- ence on national actions, Paul, 1960. ”l #87 Specific acts validated, included the Volstead Act, the Farm-loan k Act of 1916, the Migratory Bird Treaty, the Mann- Elkins Act), the Border Inspection Acts, the U.S. Shipping Board Act, the Adamson Act of 1916, the Car Service Act of 1917, narcotics regulation acts, the White Slave Act, and the Clayton Act (Warren, 1926). The White Court ind shifted in emphasis "from legal Justice to social Justice" (ibid.). - Hence, rational laws were legitimized which protected shippers and consumers and regulated the hours and wages of workers in interstate com- merce. National wartime regulation of railroads was upheld as well as rent control. Thus federal powers to wage war and to mobilize the econ- omy and ration were generally upheld. Hence, rational power was greatly strengthened, providing the groundwork for future internat iornl and int- ional crises such as the more complete national mobilization necessitated by World War II, and the emergencies resulting from the depression, (Hofstadter, 1955, P. 306). The landmark case of‘Bunti_r_lg v m, 61 L.Ed. 830, not only upheld state powers to regulate hours of labor but also illustrates the influence of Holmes and Brandeis on Court decision making. In tint case McKenna compared the laws regulating hours of labor in other countries (not unlike a typical Brandeis brief in which he took Judicial notice of available economic and political information), and then he concluded tint a reason- able man might find Justification for such regulation (which was Holmes' test when considering the validity of new legislation). These methods of testing the validity of new legislation not only influenced the White Court but affected the outlook of other Courts as well. #88 Although government power to regulate economic and social con- . ditions was validated here, it was soon to be reversed on the Taft Court. Yet in a more real sense it was a permanent victory. The [Taft and Hughes Courts committed a "self-inflicted wound" which the public forced the Court to reverse, causing great damage to the conservative cause (Mason, 1958).' Moreover, subsequent Courts ind the precedents ready to validate such regulatory social legislation. The Populist movement had died of frustration since its programs were invalidated by the courts. The Progressivist program was similarly being tested by the White Court, but its program vas upheld. As mentioned above about #5 per cent of the business regulation laws were upheld, state and rational. The Court also validated its key programs; the in- come tax, protection of the consumer, the upholding of the I.C.C. and federal police powers, support of many of labor's obJectives, and the upholding of both state and federal regulation of hours and wages of labor . It also upheld the antitrust laws, although narrowed in scope, and federal control and regulation of railroads. Furthermore, Progressivist regulation of immoral practices were upheld in the areas of white slavery, narcotics control, and the prosecution of public officials wio profited from their government positions. The effect of this may have been to take the wind out of Progressivism, since its program was validated. But the success of Progressivism probably gave hope to future social causes, culminating finally in the New Deal. The rights of labor to picket peacefully and to strike were upheld in several cases, making possible the strergthening of the labor movement. #89 . The White Court also laid the groundwork for present civil liberty doctrine, although much of it was in dissent. Whereas few politicians of the times wére defending the rights of the Negro, the White Court held that it was involuntary servitude to force Negroes to work out contracts for labor under conditions of peon—K age enforced by state authorities (55 L. Ed. 191). The Court also held that segregated railroad cars in the South violated Negro rights (59 L.Ed. 169)‘.5 Lynch law was a cannon occurence in the South, but Holms and Hughes in dissent decried this practice in intimidating a Jury trial (59 L.Ed. 969).6 The Court also upheld federal power to prevent vote frauds by state officials (59 L.Ed. 1355). Harlan in m v New Jersey (211 US 78) laid down the doctrine that the Fourteenth Amendment had incorporated the Bill of Rights into the the Process Clause which was binding on the states. The White Court upheld the Search and Seizure Clause of the Sixth Amendment , holding tl'at such evidence unlawmlly seized cannot be used in court against a corporation (Silver-theme v y_S_, 64 L.Ed. 319). Arbit- rary contempt of court convictions were overturned (63 L.Ed. 656, 65 L.Ed. 1481). The requirement was laid down that in a criminal law, a clear, unam- biguous and ascertainable standard of guilt must be defined to satisfy standards of Due Process (U.S. v Cohen Grocery, 65 L.Ed. 516). Inaddition, 5However, it held that an injunction could not be issued. 6Also see 53 L. Ed. 101:1 where the Fuller Court punished a sheriff who contributed to a lynching. I" #90 First Amendment rights were protected when it was held that inJunctions against speech and press were limited in terms of period of application (58 L.Ed. 1115). Other efforts to protect civil liberties were expressed in dissent. These included efforts to protect the right against self-incrimination (63 L.Ed. 983), to protect against excessive bail (63 L.Ed. 877), to pre- vent double Jeopardy (55 L.Ed. 1189, 56 L.Ed. 500), to protect a defend- ant's right to have a Jury trial in the district where the crime was com- mitted (56 L.Ed. 111A, 56 L.Ed. 1136), and to protect the right to due process in a Jury trial (61 L.Ed. 1242, 55 L.Ed. 753). Even less successful initially were efforts by the Court to protect free speech and free press in the face of the wartime patriotic fervor of the public. This fervor also apparently overcame several Justices as Clarke and White deserted these liberties in most cases. Eloquent dissents in First Amendment areas were sent down in many cases involving the Espionage and Sedition Acts. These dissents included both free speech and free press (62 L.Ed. 1186, 63 L.Ed. 115“, 63 L.Ed. 1173, 61% L.Ed. 51:2, 65 L.Ed. 7014). Challenges were also made to the state power to regulate these freedoms (65 L.Ed. 287). The Court bowed to pub- lic Opinion in the abuses of these freedoms but Holmes' words supporting the free market place of ideas as vital to democracy had a far-reaching impact which is not forgotten up to the present time. Prior to the white Court, this area of Constitutional liberty had been almost completely neg- lected. Yet Holmes' and Brandeis' ideas inspired later Judges, American ideas and elites to make these ideals a living reality. As Mason and 491 Beaney (1959, p. 583) point out "the natioral government's behavior dur- ing World War II was exemplary," and Holmes' words were often cited dur- ing the Supreme Court's McCarthy era struggles. Thus these dissenting ideas were taken up by Stone, Cardozo, Frankfurter, Douglas, and Black and written ito law. Studies of the Taney Court indicate that party identification was related to a liberal-conservative ideology, probably based on an . agrarian versus urban political base. Paul (1960) finds little evidence that party divided Supreme Court Judges along the lines of any such ideol- ogy in the 1880's and 1890's. It is likely that political parties failed to polarize political decision makers along ideological lines flan the Taney to the White Court. On the Fuller and White Courts no clear party division over liberal- conservative issues involving Progressivism seemed to occur. It is true that on the issues of Liberal NationaliSm on the 1908-1909 Fuller Court and the 1910-1915 White Court, Republicans are liberal and Democrats are conservative. However, this seems related to the fact that Republican ad- mistrations had championed Liberal Nationalism and that party identifica- tion transferred support of those administrations among the Justices to support of their actions in cases coming before the Supreme Court. The traditional natioralism of Republicans and the states' rights Stance of the Democrats also helps explain this behavior. Such a relationship with Liberal Natioralism faded in the 1916-1920 white Court as such cases then represented aCtions of the Democratic Wilson administration. It is likely that without a party ideology, party influences, and party conflict on economic and class matters to guide Judges in the t#92 1860-1920 period, they decided cases on the basis of other reference points and issues such as traditioral legal concepts. This seems to agree both with Paul (1960) and the findings in Chapters 2 and 5 above trat certain legal issues were much more salient to Judges in the first period of the White Court than the second. These issues involve fed- eralism, the Commerce power, Judicial power, the tax power, police pow- ers, substantive due process, and the Contract Clause,7 as well as per- sonal attitudes toward trusts, railroads, insurance companies, liability, the common law, and so forth. Many of these issues seemed unrelated to or differentiated from the Progressivist ideology in many Judges' minds. These attitudes shifted according to contemporary political conflicts such as which party dominated the natioral goverrment . During the White Court, these legalistic issues faded in salience as the Commerce Power and the Judicial Restraint attitude systems disappear in the second period and Federalism becomes a much smaller factor in deci- 8 sion making in that period. Progressivism looms as a much larger and more important factor in decision making in the second period. Hence, the White Court became polarized along a liberal-conservative ideology involv- ing ngressivism; and a clear bloc structure emerged along these lines. Progressivism involved a higher proportion on variables and variance in 9 the second period, as the decision making became obviously less complex. h- 7 t The Judges' attitudes toward these concepts were important in their decisions but this is not meant to imply that the abstract doctrines were obJectively applied. 88prague (1968, p. 61) finds no bloc structure in’fedemlism casesin the 1916-1920 period. Several older, more traditionalist Judges left the Court in the 1910—1916 period, it may be noted. 9 The attitude system ranks for the second period showed much higher intercorrelations as well. ' “93 Such a trend toward the polarization of the Supreme Court, apparently continued through the Taft arr} Hughes Com'ts. During the Hughes Court almost all attitudes were polarized along a liberal-conservative dimen- sion (,Mattingly, 1969). Furthermore this increasing ideological polariza- tion of the Court became increasingly related to political party. Thus on the Taft-Hughes Courts a weak correlation of liberalism with the Demo- cratic party appeared. This became more pronounced on the Stone, Vinson, and Warren Courts where a clear-cut association is seen (Table 36 above) as the liberal—conservative ideology coincided roughly with political party positions . During both periods of the White Court political party consistently influenced decisions in several issue areas. These issues coincided with traditional party differences both on the Court ard off. They are federalism, Judicial power, libertarianism, general welfare, and civil rights. The Democratic "ideology" was states' rights oriented, democratic, liberty-oriented, pro-general welfare, and unsympathetic to Negro civil rights. The Republican "ideology" has rationalistic, for Judicial power, pro-government on liberty issues, for special interests (business), and sympathetic to Negro civil rights. The movement of the Wilson administration to an affirmation of the of the need for rational power seemed to influence Democrat ic Judges on the Court to affirm its programs, thus seeming to reduce the federalism issue to an issue no longer salient to the Court or as a difference be- tween the political parties. Multivariate aralyses of the decision-maldrg behavior of the White Court revealed that on both'periods of the Court the following attitude #91; systems were prominent: Liberal Nationalism and State Progressivism (reflecting Progressivist programs at the two levels of governmental power), Federalism, Libertairanism, General Welfare, and Laissez-fairism. In addition, the first period contained the attitude systems of Com- merce Power and Judicial Restraint, and the second period contained a Darwinism attitude system. Analyses of the whole period also identified an attitude system composed of party-related issues. These attitude systems explaines from 711 to 80 per cent of the variance contained within the data. These attitude systems appeared to have somewhat complex relation- ships with values and value systems (Figure 19). Thus both Progressivism attitude systems involved the common value of equality as did the Darwinism attitude system. Darwinism involved an interaction between the values of equality and efficiency and reflected an ideology by itself: social Darwin- ism. The Progressivism attitude systems were related in that they reflect- ed a common Progressivist ideology. This ideology was divided somewhat over the value of states' rights. Progressivism and anti-Darwinism were in turn related to an ideology representing what has evolved into modern liberalism. The attitude systems of Federalism and Calmerce Power in turn were tied to the states' rights value which also accounted for the split over Progressivism. The General Welfare attitude system seemed to contain only general welfare as a value (altruism). Libertarianism con- tained two components representing separate values: liberty and political party. The four values (states' rights, general welfare, liberty and party) were related to a "party ideology". They all represented values which seemed to divide om: maJor political parties. 1H95 Probably due to the dichotomous nature of our data (each vote represented a choice between two alternatives and each scale represented a bipolar attitude), each of the attitude systems, values, and ideologies were also dichotomous. The equality value, for example, included both an anti-equality and a pro-equality pole. Judges rated equality as high- ly valued, low valued or indifferent . The Darwinist ideology includes both a Darwinist vieWpoint as well as its antithesis, anti-Darwinism or Paterralism. The Progressivist ideology also has its opposite, anti-Progressivism, traditionalism or conservatism. The party ideology has its opposites, the Republican ide ology and the Democratic ideology. It seems clear that a large maJority of the decision-making be- havior of the White Court Justices is influenced by two maJor political factors related to off—Court influences and experiences: Progressivism and political party. Studies of the background of the Judges showed that their party identification was connected to party ideology, that is their attitudes on states' rights, the General Welfare, and Libertarianism. Hence, the conclusion seems logical that their attitudes on these issues were in- fluenced by their party identification. Likewise their pre—Court association with the Progressivist move- ment influenced their attitudes toward Progressivist issues. The lack of such association resulted in opposition to Progressivism. Furthermore, the J udges' paternal socioeconomic status seemed to influence their #96 attitudes on Darwinism. The high status (proven "fittest") Judges embrace Darwinism while those of low-status background seem skeptical of that ideology . Other background influences on the Judges seemed to affect their relative liberalism on Progressivist issues. Thus, a Northern, Eastern and urban birthplace and early environment seem to result in more Progres- sivist attitudes by the Justices. Also an immigrant status of their par- ents and their experience in state office holding seeded likewise to result in more liberal attitudes. Pre—Court experience and familiarity with the problems of urbanization and industrialism and grass roots poli- tics seemed to create sympathy for Progressivist programs. Basically, the attitudes of the Justices seem explainable in terms of current con- cepts of early life political socialization. Background characteristics and pre-Court experiences of Judges seem- ed to explain much of their attitudes on the White Court. Thus Judges who were Republican were more nationalistic, Judges with more experience in state politics or who were mainly state-oriented were more sympathetic to states' rights. Westerners were more nationalist-minded but those with rural backgrounds were state-oriented. Judges with more lower court Judicial experience and those with longer Supreme Court tenure were more favorably disposed to the exercise of Judicial power and more likely to uphold the actions of Judges in con- flict with the democratic branches of goverrment. Former lower court Jud- ges also tended to support lower court convictions in the face of civil liberty claims, showing sympathy with their former pre-Court roles. 49? Democrats with low status parents from an urban environment (who rappened to live in the North) were favorable to Progressivism. Demo- crats of high status families (all from Southern environments) were con- servative. Republicans varied little in their liberalism on Progressiv- ist issues on the basis of parental status. However, urban Republicans were liberal on Progressivism and rural Republicans were conservative. The stability of the attitudes of the Judges between the two periods of the White Court does not seem impressive. Their attitudes did apparent- ly change somewhat and there was even some shifting in their value priorities. However, the bulk of their attitudes appeared to change little. Congruity theory appears to explain much of the shifting of attitudes between the two periods. Thus the influence of certain reference symbol or sources on attitude change seems clear. The evidence seems overwhelming that politi- cal party as a reference symbol seems to have influenced the RepubliCans to be much more liberal on Liberal Nationalism in the first period than in the second. The early Republican leadership of natioral Progressivism and of the administrations which inputed most of the cases in Liberal National— ism in the first period seemed to account for this. The Democratic cap- ture of that leadership and the rational government reversed this situation causing attitude change on the part of the Republicans (and Democrat White) in line with the reference symbol of party. #98 Similarly sociometric relationships also affected attitude change. Brandeis' persuasiveness either in terms of his personal influence or his thorough research and.marshalling of evidence behind his opinions had a significant impact on White Court decision making in the second period. That influence was particularly pronounced in influencing Hblmes to a much more liberal position on Progressivist issues.10 The differences between our two maJor parties on various issues ani values were examined as to the history of alliances of voting blocs with the parties, party influences on other Courts, roll-call analyses of cone gressmen, the impact of historical events, and ideological traditions and bases of the two parties. It was concluded that traditiorally the Demo- crats seemed to value more highly-democracy, equality, the general welfare, states' rights, and liberty. For the latter three values, this coincides with party-related values and issues on the White Court. Mbreover, in analyzing individual Judge's rankings of seven values based on this study, Democratic Judges significantly ranked states' rights, democracy, and liberty higher and also ranked general welfare slightly higher than.Rep- ublican Judges.ll On the White Court as on studies of the Supreme Court in general, Democrats clearly opposed Judicial power (and endorsed democ- racy) more than Republicans who supported the use of Judicial power (Nagel, l96éc). 10Day also may rave been influenced somewl'at . llOmitting Holmes from the comparison. He was only nominally a Republican 499 Democrats also seemed traditionally anti—government and again individual Democratic Judges significantly rank pro-government as a value lower than Republicans. This leaves the question of why the value of equality does not differentiate Democrats from Republicans on the White Court. Apparently Democrats on the Taney, Stone, Vinson, and warren Courts valued equality (economic liberalism) significantly more highly than Republicans. Sev- eral factors seem to explain the absence of this relationship on the White Court. First, the influence of the value of laissez-faire or anti— government (and liberty) seems to cancel out any tendency to support equal- ity by White Court Democrats. Second, four of the six Democrats received major governmental posts from Republicans which casts doubt on their party representativeness. Third, these fOur Democrats were from.the one-party South where traditional ideological divisions on party lines could not occur. When only Northern Justices are considered Democrats Clearly fav- ored equality over Republicans. Studies of various Supreme Courts in history seem to show that tov a‘great extent political party identification has been correlated with attitudes on economic liberalism (Democrats being more liberal) and socio- economic status correlates with attitudes on civil liberties low status Judges being sympathetic to liberty). These relationships are clearly not found on the White Court. The fact that the White Court did not represent a very broad class Spectrum and that most Democratic Judges may have been unrepresentative of their party may account fer the lack of such relation- ships. 500 Progressivism, as an ideology, seemed to Support the values of equality, general welfare, ard pro-government. Judges who were Progres- sives in pre-Court politics significantly valued equality, the general‘ welfare , and democracy (but not pro-government )12 higher than non-Pro- gressive. Progressivism seemed to show some of the same values as Jeffersonian- Jacksonian Democracy, specifically equality, democracy, the general welfare, and to a large extent states' rights (gradually many Progressives became national oriented, however). Hence, it may have been inevitable that pro- gressivism evolved into a liberalism that became associated with the Demo- cratic party. Basically, however, Progressivism seemed to be a force for orange during the period of the White Court (emerging from the heterogen- eous elements of our society), while political party, being transmitted primarily through political learning Within the family, seemed to be a conservative force in politics. The Darwinist ideology on the Court seemed to call for the support of big business and large economic units, upholding maJority oppression of minority races, protecting the right to profit from ethically question- able dealings, and upholding democratic institutions over Judicial or Con- st itut ional restraints . It seems significantly shaped by Holmes ' views on Darwinism. Political party and Progressivism rad an impact in transmitting and shaping values. They seemed to act as political symbols affecting l2A ranking of Judges according to pre-Court association with the Progressivist movement correlated with their ranking on the Laissez-faire attitude sy stem, however . Progressives were pro-goverrment . 501 reactions to their content in terms of a positive or negative reaction to those concepts as symbols. Studies of power indices and rates of dissent showed that Day and White were powerful figures on the White Court while the liberals. were much less powerful in forming successful maJorities. The first period of the White Court showed little bloc voting but the second period showed a liberal bloc composed of Clarke, Brandeis, and Holmes, a conservative bloc of White, Van Devanter, McReynolds, and McKenna, and a central bloc of Pitney and Day. Measures of dogmatism seemed to indicate that Pitney and McReynolds were highly dogmatic . In characterizing the Judges on the various ideologies and values, the following positions were noted. Progressivist Judges included Brandeis Clarke, Pitney, Harlan arri Hughes. Anti-Progressives included McReynolds, Lamar, Van Devanter, and White. McReynolds, Lamar, and McKenna were laissez-fairists, while Parlan and Pitney were strongly pro-government. Holmes, White, Van Devanter, and McReynolds were Darwinists, while Pitney, Day, Clarke, Brandeis, Lamar, and McKenna were anti-Darwinist. On Feder- alism, Clarke, Brandeis, McReynolds, and Lurton were pro—state, while Van Devanter, McKenna, and Day were natioralistic. On Libertarianism, Harlan, Hughes, Lamar, Holmes, Clarke, Brandeis ani White were pro-liberty, while Pitney and McReynolds were anti-liberty. The general welfare value showed Clarke, Brandeis, Pitney, Harlan, and Day to be for the general welfare, but McKenna and McReynolds were favorable to special interests. On the Judicial power issue, Brandeis, Holmes, Hughes, and McReynolds opposed Judicial power, but VanDevanter, Lamar, and Pitney consistently "J 502 favored it . Otherwise Clarke, Brandeis, and Hughes seemed to be Progressives following the Jeffersonian-Jacksonian ideology. Lamar was a laissez— fairist. McReynolds and Lurton seemed to be extreme individualists. Harlan seems best described as a "modern" liberal, being for both equality and national power while also being anti-Darwinist. Van Devanter, Day, McKenna, and White appeared to be Hamiltonians, somewhat conservative, but for rational power. Day was, however, a moderate Progressive. Pitney was characterized as being a strongly pro-goverrment and authoritarian Progressivist . Holmes had a clearly thought-out philosophy of which the central concept was Darwinism as described in the above discussion of that ide- ology. He was also a Progressive of the New Nationalist variety. Let us now turn to an evaluation of the techniques used in this study. Sprague (1968, p. 5) notes that the undimensional hypothesis necessary for bloc analysis of Court data leaves much unaccounted for. The data contained in this study amply illustrate this point. When the data contains many basic dimensions of attitudes, bloc analysis tells us little and one must resort to techniques of multidimensional analysis. Bloc analysis is merely a less sophisticated method of determing Justices' ranks on the maJor dimension. If one is fortunate enough to find a uni- dimensional Court, it may be useful; otherwise it obscures arfi ignores the less prominent dimensions. A much better method would be to examine "blocs" or ranks of Justices on the major attitudinal dimensions. This can be done by either determining the factor scores of each Justice on each 503 dimension or obtaining the average ranks of the Justices 15er the ranks on the constituent variables of each dimension. It was also noted trat the method of making "cumulative scales" or large scales composed of smaller scales which touch related issues (such as all Judicial power scales) with lower C.R.‘s (i.e. a quasicale), is quite analogous to the method of factor aralyzing the smaller scales. In using both methods, comparable results can be obtained. Moreover, the problem of using the same case in several scales was found not to be a serious one. Indeed, the evidence is strong that certain cases involve several issues or attitudes. Sane Justices decide on the basis of one issue while others make a different issue the basis of their decision. Hence, many cases "belong" in two or more scales. In arw case the use of exclusive scales gave approximately the same attitu— dinal structure as the use of scales using cases in several different scales. Moreover, the use of the same cases in several scales was useful in showing which attitudes were more salient to which Justices. The scale- ing technique which measures the maJ or dimension of the constituent cases also results in NSR's. The NSR's allow one to discern which attitudes are more salient to a Judge. It permits one to study the pattern of NSR's for a Judge for ideosyncracies in his attitude-value system. Hence, the affect of attitudes for individual Justices can be studied. A further use- ful technique in studying affect was to rank each Judge on his extremity and consistency towards the several attitude systems and thereby discern his ranking of values which were related to those attitude systems. 5015 The technique of splitting the data into two time periods for comparison proved particularly useful . It helped support the validity of the scales. It cast sane doubt on the "relatively enduring" quality of these attitudes. Some changes were apparent and the technique permit- ted the determination of the causes of these changes. Thus both off- Court political influences and new sociometric relationships due to a shift in Judicial personnel accounted for shifts in attitudes. Basically, however, most Judges' attitudes were stable and enduring. The multivariate techniques employed were quite useful. The factors identified did form meaningful psychological entities . Some factors fluctuated slightly in variable content but were fairly stable. Quarti- max and varimax gave slightly different results. Qlartimax did show a tendency to form a general factor and gave fewer factors . Oblique araly- sis, on the other hand, gave results which were not particularly more . satisfactory than orthogonal methods. The Spaeth—Rokeach model proved quite usefill to the study, factor analysis, McQuitty pattern analysis, and L.A.W.S. were well suited to the model as they permitted a hierarchical arrargement of the psychological constructs . The interpretation on these constructs fit approximately the description of the components of the model. The model encouraged a search for measures of affect as well as fitting the description of the cognitive- behavioral components of attitude structure. Based on our data, however, attitude systems (identified by multi— variate analysis) are not apparently equivalent to values. Values orient attitudes, clearly, but seem to interact with more complexity. Ideologies 505 _ do seem composed of sets of interrelated values (and attitude systems) ' as postulated . The question was raised as to what the interacting foci that pro- duce an attitude were. In some cases they may be attitude toward obJect and attitude toward situation. They could be composed of several beliefs. It is also possible that that they could be canposed of interactirg val- ues. Since Rokeach (1968a) holds that values transcendentally guide actions and Judgements, the extent to which a Justice perceives an issue to invclgve a value or conflicting values may affect his reaction to that issue . Concepts of political socialization proved useful in discussing possible causes of Judges' attitudes. Congruity theory seemed helpful in explaining why Judges appeared to shift in attitude as the reaction to a reference source or symbol . Finally, this study seems to reinforce previous findings (Schubert, ' 1965a; Spaeth, 1966, 1967) that the Judges' attitudes and ideology are the most important factor in explaining their decision makirg. These attitudes are heavily influenced by the Judge‘s background and pre—Court experience. Legalistic influences and precedent seen of minor impact. However, far from the Court being a "closed system," this study indicates that it is open to external influences. Decision-making behavior does change as a reaction to political events and external influences. 13A Judge may highly value democracy (anti—Judicial power) and have a low value for equality. Hence, these two values may interact to pro- duce his attitude on a state law regulating business, for example. m 506 Political party and the Progressivist movement as reference symbols apparently did affect Judges' decisions. New Judges Joining the Court do affect the small group dynamics of the Court, producing change. Current ideology and political influences are input as new Judges Join the Court in turn affecting the behavior of Judges still on the Court. In short, the Court is apparently not insulated from the political systemh but re- presents a system open to vital issues and concepts of the greater pol- itical entity. BIBLIOGRAPHY BIBLIOGRAPHY Adrian,.Charles. State and Local Governments. New York: McGraw-Hill. T957. ' Allman, J. and Rokeach. M., "A Note on the Use of Paper- Pencil Items to Probe Cognitive and Affective Processes," Educational and Ps cholo ical Measurement, XXVII (19575. 127-EBB. Baggaley, Andrew. Intermediate Correlational Methods. New York: Wiley. 1935. Banfield, Edward and Wilson, James. City Politics. New York: Random House, 1963. Barber, James. Honorable Eighty Eight. New York: vantage Press, 19 7. Becker, Theodore (Ed.). The Impact pg Supreme Court Decisions. New York: Ox ord University Press. 19 9. Hell. Daniel (Ed.). The Radical Right. Garden City. 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Gusfield, Joseph, "The Study of Social Movements,“ Inter- national Enc clo edia of the Social Sciences. New York: CroweIE, Collier and NacMiIIan, I968. Guthery. S. R.: Spaeth, H. J.: and Thomas, 8., "Pascale, A Fortran IV Multidimensional Scaling and Factor finzlysis Program,” Behavioral Science, XIII (1968). 2 . Guttman, Louis, "A New Approach to Factor Analysis," in Lazarsfeld (Ed.). Mathematical Thinking lpflppg Social Sciences. New York: Colum ia University Press, 1955, 258-348. "The Principal Components of Scalable Attitudes." in Lazarsfeld (Ed.). Mathematical Thinking‘;p pp; Social S iences. New York: Columbia University Press, 1955. . Chapters 2, 3, 6, 8, and 9 in Stouffer. et. a1. Measurement and Prediction. Princeton,New Jersey: Princeton University Press, 1950. Harman, Harry. Modern Factor Analysis. Chicago: University of Chicago Press. I967. Harris, C. and Kaiser, H., "Oblique Factor Analytic Solu- tions by Orthogonal Transformations,"'Psychometrika, XXIX (l96u). 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"Justice White,” Nation (May 3,-1917). 528-529. ”Justice White.” New Republic (June 1. 1921). 68. Kaiser. H., "The Application of Electronic Computers to Factor Analysis.” Education and Psychological Measurement, XIX ( . Katz. Daniel, "The Functional Approach to the Study of Attitudes.“ Public Qpinion Quarterly. XXIV (1960). 163-20h. . The Social Psychology 2;,Orgggizations. New York: Wiley. 1§53. Kelly, Alfred and Harbison. Winfred. The American Consti- tution. Its Origins and Develo ment. New York: w; W. Norton and Company. 19 . Kenyon, Cecelia (Ed.). The Anti-federaligts. Indianapolis: Hobbs-Merrill. 1935. Kerlinger. Fred. F undations of Behavioral Research. New York: Holt. ne r . T56 . Key. V} O. blicugpinion and American Democra z. New‘York: IIQI—U -’ , r(5.9d£. ":SC. 0Y8. I; 3 - "$1318 .-.(\)FS.€‘!CQ Moss. . . T7§.IPS. 15.0.g{‘ “1998. is. '7 , .4. -{.0vs.Qas. éwv ‘fl. .eor ., 999.5 9 a- r¢.a£€.ats Q-Lf ‘l‘ A .iéanfaEflta: .3:€.€§ .» 7.7%t.fific.$#€.fitsk an: .¢I~.:f‘q 88$ 6934':- \.0253 '.:;"..“_ IN?" ’11 :{.'.:~:fl.‘7: RICH-51¢. .I’EJMC‘H ,. "U. .. ‘li '1‘}? I\( I3 " '3)". 2 ';,LI‘:_. C.:IS. oat: qua 5&8 APPENDIX III (cont'd.) Scale No,a 16 17 18 19 20 22 23 24 25 26 27 28 29 30 31 Caseg Used ;g Scaleb 315.2h8,2 3,282,217,218,219.289, 290,291.2 1,236. 390.229.274.230.243o256.371.308. 251.252.338.387.23 .268o323cz94. 382,385,225,36h,2h1,256,371,2h9, 357.340.359.309. 322.231,292.386.271. 231.318,336.386,268 3“5.321.339.319.317.2“4.454.237. 238.353.258.286.314.327.284.349. 388.345.305.213o237.238.287.317o 28h,285,286.314,353.327,341.342. 3u5.317.24h.375.237.238.373.353. 239.28u.327.31u,286.285. 361.245.309.211.274.326.3u5.3039 298,317,2hh,299,253.308,372,352, 375,366,273,272,350,360,354.237. 238.373.370.379.380.265.266.387. 338.389.296.295c301.302o337.29u. 390.353.239.28“.327.31“9286.285o BIB-315.312. 325.351.2“5.272.352.295.295. 30992119303029903669360037993809 26502660301030293370313o 27“.298.253o372.308.2?3o350.354. 370.387.338.294.390.315o312- 333.37?.383.375.275.243.373.323. 255,222.25u,273.316.370.281.226, 227. 2970369938303220332!34703u892350 308932502u39350936992709h52v3590 334.215.382.250.317.313.377.32“o 38“.346.239.278.365.236.214.355. 362,2“8,315. T1 e-breaklng Cases 530. 5700513051u05320 506. 5&8.517.5“0.636. 507. 525,573,633. 5h5,519,532,5h3. 501 . 563 . 562 . 526 . 555.501.556.563. 527.559.526- 555.556.527. 555.556.621.527. 54?. 621. 625.524.533.572. 552.620.551.539, 5“ €46.535.559o558. 5““ oda€ 5: car's! a. W:' M. w .993. .. I viz ,C‘EQ, ' 'r 325. at} 7. v‘-..P.0t.a‘¢ "1". .JPI;.?‘8 A. “('1 “(VA 90‘? . ,Jif. vstusej . ‘_,-.. ’2 Q \ x y x V A“)? u" ’1 "' ‘, \ 5&9 APPENDIX III (cont'd.) Scale No.a Cases Used in 32 369. .333. 322 332 308. 54 359. 376:377. 38“ 33 297. 388. 235. 3#7. 269. 382. 317. 250, 318. 324, 362. 21a. 355. 315. 34 2930288 35 211.319.233.228.237o 239 346. 36 363. zuo,37u.261,u52. 3“3. 3““: 353. 335. 37 229.230.371.256.251. 38 318. 39 326,304,253. no 382,268,338, .335:22 .234, 329.330.213.37 #1 378,362,382.338.22u, 335. #2 279.226.21u,268.38h. 291.265.452.376.380. 307.328.329.330.358. #3 230,231,2uu.3u9.23u. an 390.274.285.308.338. 323.298. “5 317.3#5.237.238.28#. 353.327. #6 388, 305,213, 287, 317. #7 gag. .230. 231. 321. 339. 336.252. 308..232. 268,353, 285,286, 31 #8 299 366, 379, 380, 266, 337. Scaleb 2&3. 350. #52. 239. 278. 270,215, 338, 365,248, 236, 238 g 317 O 287 O 2h6 .306, 307, 252. 310 357 328 250.351.308. 381.289.290o 243.251.252. 306.396. 387,234,268, 285,286,31h, 239' 3&1, 342. 319. 317 318 .386:237: 238: H32? 28“ 265 301 302. Tie-breaking Cases 596.535. 522.523.515.516. 521. 504.555.556.520. 511. 505,610. 513.51“¢532o506. 525. 62u,5h6,623,625. 536- 506.530- 611,563,562 570 501.556.568.569. 555. 556. 568. 569. 532 507 543 555. 555 526. \l' "t‘ “6V‘bh Q91"; 7 r (‘82,. “#18:; n£.&:l!{y_ ‘ , 571.60C, 'I’ {-fl;" Wmdat, '.858.v»8;!"§ IL§C181E.' ‘fii. ot1£.!l" 988 O “I I ‘. ‘”~IBS.$VC:, tcrcfla€0 _ 3.8 5 Image? . if» .‘5. .H.rfi,8(S'Y£3D;H‘ Hki '5?.0*:.“t" w8s.e 9L5. Isa.x "“3 .‘:. 0f . W 8.: f, It 839,.121 .- t .— 0,: 52.333.06Q. r961]? I L" “l .550 APPENDIX III (con'td.) Scale No.8. #9 so 51 52 59 60 61 62 63 64 65 Cases Used $3 Scaleb 298.253.372.308.338.390.312 258.259.304.260.257.332.277u38“o 331.368.376.357.369.278. 388.3“5.321.339.2“4.305o37 .213. 237.238.373.287.317.239.23 .285. 285.314.353.327v3“1.349. §Z§o371.273a350.35“.370.387o294 2369238032993300335- 282,382,275.385.347.289.2909291o 23 . 313.328.329.330.357o335,353,339. 326.299.332.365.27 3319352v3760379936 296,229. 7,272,360.38“. 8.367.389.295. 269,270,2h3,h5h,3h6,317,318,382, 21h,365. ' 21h,38h,381.378,37h,380,265,376, 2&3,213,308,3u8,326,248.315. 272,21h,355,38h,2h8,362,381.378, 37“.3 8.250.380,265.22“.289.376. 291.3 3.290.2“3.213.351.307o328. 329.330.308.306.3“7o3u8.335.261. 326.229.3150 Tie-breaking Cases 5h6,531.5h2,5h9, 555.501.556.563. 2:3.568.569.526. 601 559.558.554- 519,536,507. 537. 530. 530. 506.530.537. 551 APPENDIX III (cont'd.) Scale No,8 1 \1 O\U\ €’ 10 11 13 1h 1916-1920 Period Cases Used in Scaleb 407.18“,421H38 #03, h38.131.49, 50, 181.76.£h6.98.11h.116.1h3.188. 17h, 8“ H41? 402. 80.109.96.408-u15,129.8.78.1814, 127,171,401.202,h46,457.10.1911 37.168.1h8.175.196.105.393.182. h00,62.56. 80.u06.109.h08-h15.129.52,78,127. 171.u01.72.h57.191.168.1u8.182. “00.393. 96.129.18#,202,fi46,10.37,105.56. 168.62.56. 105.175.196. 176.hou.hz9.432.170.h28.38.20.19, 206.427.“5.73.82.83.204.h3n,h9. 50,181.69. 397.30.31.158gu37.75o“31.28.29. 122.92,126,198,199. h2.115.176,h05.2h,155.156.4h1. 8&2 .17.106.178,1899 71,1h9.209. 11.12 .13.18. 26 .119. 6u.186. 20 .173. 61 .87.163.118. 396 195.“8.392.223.124.138.153.112o “40.111.137.95.89.39o40.“1.93o 166.201.205.3h. 83 .1. 8 .32.1uo. ha. 172. 180 .193 fig 111.87.61.16.u26.7.5u.57.66. 118.190. 51.392.u6.120.86.1o.u7.6o.172. 112.65.187.4“0.33.72.89.95.121. 183.201.99.100.101.102.39u.68. 103.104.117.34.113. 1h7.6u,78.173.168. T1e-break n C ses 617 605 605 603 552 APPENDIX III (cont'd.) Scale No,a Cages Used _p__Sca1eb 15 1145,1116. 16 80.8.6u.78.168.393.398. 17 103,108.23.56.109.uo6.79.110. 55.78.5.h.159.421.h22.121.423. 160.136.150.179.81. 18 62.67.393.123.125.182.35.55. 128.78.63.159.445.204.152. 816.160.168.150.79. 19 210.“24.15.132.133.134.4“.90. 91.1h2.161.u18,u19,420,h47. 39109307n01970 20 51.103.1ou.15.182.185.86.55.52. “21.136.159.10.90.91.422.“23.197. 21 123.113.125.132,133.13U.128,206, t§7i§77919392a731121OhOB‘u15030 . 7. 22 394.113.18.177.2.3.ué.157. 23 123.119.125.u33.26.128.ha.u7. 193.198.177.159.187.nu5.61.87. 162.121.7.118,h08-415999-102. 39 . 2n 27.158.177.2.81.3. 25 397.884.186.207.70.107.u36.2. 65.8g9.nu3.451.108.88.94.25.203. 167. 1.3.6.399.117.u6. 26 186.65. 27 33.157.200.27.397.““4.107.“39o 3.108.88.94.25.203.71.3.6. 399.117. 28 190,110,93.72.121.159.63.16h, 135.136,52.25.208.109,#O6,80. 29 79959077097078758921'220u35o 436.70.184.181.151.u3o.. Tie-breakln QQEEE 606 603 602,60“. 553 APPENDIX III (cont'd.) Scale N0.3 30 31 32 33 38 35 36 37 38 39 8O 81 82 113 88 85 Tie-breaking Cases Used 1;; Scalgb Cases 139.207,].5’4,I436,70,130,2¢192, 601 851,167.88. 86.802. 850. 51.9. 68.36. 397.185.186. 85,8, 5. 857,185, 889. 75. 89.121 .205. 183, 165, 86 .169. 187, 113, 888 .117. 103.108.68.188.99-102. 398. 80. 800. 86.68.397.85.857.75.89.121.205. 99.100.101.102. 398.113. 802. 850, 51. 9.185. 186. 8. 5. 889. 86 .165.169.187.117. 10 68, 888, 188, 80, 800. 85 1 1 3. 0“. 392,120,112,880,95,89,201.38. 51. 86, 86, 10 .87. 60 .172, 65,187, 33, 72,121,183 99.100,101,102, 398, 68,103,108,117.113. 195.88.396.223.128.138.153.112. 137.39.80.81.166.205. 79.23.56.55.78.821.822.823. 160,150,179. 850,127,889,86,165,188,858,9, 182.800.51.56. 186.720 180.185.98.161 .163.181 .171 . 177.188.88. 96,807,185,188,171,177, 81. 68 ,3, 88,161 ,163,181 .177,168, 8, 180, 2M 396. 129 103.108.109.806.110. 5.8.159. 121 .136, 81. 99,100,101,102,398,123,125.121, 128.177.159.885,808-815. 55“ APPENDIX III (cont'd.) Scale N0,8 86 87 88 89 50 51 52 53 58 55 56 57 ‘ Tie-breaking Cases Used 1&380a1eb Cases 119.833.26.83.87.193.198.187. 61,87.163.121.7.118.99-102.398, 123.113.188.103,108,15.182.125, 185.86.55.132.133.13“.52.128.18. 206.821.127.136.177.159.193.10. 90.91,2.73.822,823.121.808-815. 3.197.“6.157. 53.27.397.484.107.439.443.108. 88,9“,6,399,117. 93.121.159.52.109,806,80. 82.115.176.24.397.155.156.805. 881.17.106.30.31.158.837.75.831. 178.28.29.122.189.71.189.92.126. 162.198.199.209. 113.123.119.125.833.26.128.27. 207.18.83.87.193.198.177.159. 187.2.885.61.163.87.121.7.118. 808-815.99-102.398.81.86,157. 190,135.72.63.168.110.136.208. 208.395.804.176.35.25.805.“.5. 63.20.159.65.27.152.79. 190.53.157.27.200.93o110o397.44“. 72.121.207.154.186.20.107,436.2. 65,839,159,883,108,63,168,135. 1+519136.88.9“9250203o71n52.167o 81,3.6,399.117.208.86,109,806,80. 123,806,80,171,801.72.857.190, 605 1 . “'08-‘815.129.127.78,168.182g “00.393. 185,161,98,163,181.171.177,168. 8.140.27.96.81.53. 80,8,187,68,78,173,168.393. 555 APPENDIX III (c0nt'd.) Scale No,8 1 \J1 10 Whole Period, 1910-1920 Cases Used 1g Scaleb 355,807,310,188,821,38,803,838, 131,89,50,181,76,886,98,118,116, 183.188.178.88,817,802. 288. 362. 80,109,267. 386.96. 273.171. 80L 202. 25L 252. 269. 270.388.212.857.10. 78,191. 37. 280 .168.188.175.196. 282,280.10 297. 373.182. 800 .365.2 218 229. 22 220. 230. 23L 62.56. 80,362,109,806,389,315,288,267, 129,808-815,23M 273.127.171.801. 857. 72, 852, 280. 78, 288, 282. 220, 225. 230, 231. 297. 298.191.168.188, 182, 800, 393, 96,386,129,188,310,215.202.886. 2513252.269.270.212.388.10.37. 105.56.282.218.229.221. 288.315.269.270.318.235.282. 225.168.62.56. 362.385.852.280.297.105.175. 196.365. 362.176.808.829.832.170.310.828. 215.20.38,19,206,827,85,73,82, 83.333.208.838.89.50.181.852. 280.338.69. 332.397.388.31.158.837.30.75. 831.376.369.28.29.122.92,126. 162.192.199.278. 308. 258. 259. 257. 260. 82. 277.115. 176. 28,155,156. 805. 881 .366.17. 106. 331.178. 368. 367.189.71.189. 209. 11 .390. 280 .388. 378.12.13.18. 26. 119.297. 320,216. 68,186,253. 305. 173. 20 .333. 328.329. 330. 356. 316. 61 .87.163. 311.338.118.381. 382. 275.326.396. Tie-breaking Cases 617 506.618.537.532. 525.605.616.570. 518,612.613. 562.563.583.605. 532.513.518.535. 506.537.525.618. 532.518.570.612. 613. 583,605. 583,561. 531,582. 511'6 O 514'9 o 553.509.568.503. 569. 556 APPENDIX III (cont'd.) Scale No8 11 12 13 18 15 16 17 18 19 20 Cases Used in Scaleb 198. 280. 26L 88.392. 396. 378.223. 128.138.153.363. 280. 293. 288. 306. 112 .137.111 880. BL 95. 388. 383. 833“ .335.39. 80 .81.93. 166 .201. 2 5. 38. 833.1. 8 .32.180. 218 .83.172.180, 193.198. 283. 263. 213. 388. 383.111. 853. 262,268,118. 87.61.16. 58. 57. 66 7. 826 .279.190. 21L 86.392.120.86. 319.10.87.60. 17L 293. 288 .233. 228.237. 238.112. 65.187. 880. 317. 33. 72. 89. 95.121. 183. 20L 287.239. 38L 99-102. 398. 68.103.108.117.38.113. 309.297.359.187.64.78.380.173. 351.282.217.218.219.168.232. 355.362.328.250.215.325.185.186. 236.80.315.288.8.253.380.78.68, 359.282.217.218.219.220.289.290. 291 .168.232. 393.281. 79. 390. 103.108. 278. 229. 109. 806. 23. 56. 230. 285. 371.110. 256. 55 .78. 8.5,159.308. 251. 252.821.822.121. 136. 387. 823. 238. 338.160. 268 .323. 298. 81 .150.179. 382.385.393.123. 62.67.125.182. 225.368. 28L 282. 256,371,289. 335. 357. 35. 55.128.78.63 159. 340. 885. 208. 328.329. 330.15L 359,168,160. 816,150.79. 309.236 828.15.210.322.231.386.132.133. 138.292.88.90.91.182.271.161. 818.819.420.487.391.93.?8.197. 123. 51.15.231.230. 318,115,185. 86 .336. 252. 55. 52.128. 821 .127. 136,159.10. 90. 91.171. 233.822. 823.121.386.268 .197. Tie-breaking Cases 522.505.523.515. 516.521. 550 522.555.556.504. 5239515051605210 520.511. 1 517.530.503. 606.571.561.502. 530 570.513.518.532. 5 6 588.517.580.558. 559.507.503. 525.573.603- 532.543 .‘?"j.S '. u smoggqc . '1 "mime! rantsacm ‘ V ‘. .rflr‘ w 09 elf-'1'." 41}??? .Efir fC'.“ I . 8681311: 557 APPENDIX III (cont'd.) Scale No.8 21 22 23 2h 25 26 27 29 29 Cases Used lg Scaleb 123.113.103.10#.321.339.3“5.125. 319,317.2&4.132.133.134,128,206, 127.177.233.193.2.73.237.238. “08-415,3,353,285,286,31u,327, 28u|u60157o 394.113.3“59321.339.319.317.2u4. 18.177.2.237.238.353.3.285.285. 31”.327.28u.3u9.a6.157u 123.388.345.125.“33.26.119.h3. “7.129.305.193.194.177.159.197. ““5.61.87.163.213.237.238.121. 118,7,317,h08-h15.284.295,286, 3&99353032703u103u2099-10203949 3“5.317.2“4.27.375.207o15“.70. 237.238.373uu36.2o121.451.353. 232é28u,327p31u,286,285.167,81. 3. . 361.2“5.309.211.27uo326.345.303. 298.317.2uu.299.397.253.308.372. 352.375.“44.366.186.207o70.107. 273.272.350.350.“36.2.65.35“. 439.“u3.451.237.238.373.108.88. 9“.370.379.380.25.203.167.265. 266.387.338.81.3o6n399.117.389. 2960295930103020337929u039003530 239.28“.327.31fio2859285.“6.312. 313.315. 326,361,2u5.272.186,352,65,389, 29592960 309.53.157.27.397.200.““4.211. 303.299.356.107.360.439.“h3.108. 98.9u037903809265’2660259203071l 3.6.399.117.301.302.337.313. 190.27U.110.93.72o121.298.253. 372.308.273.350.35“.159.63.154. 135.136.370.52.25.387.338.29“. 390,208,109,u06,80,315,312. 224,377.79.59.77.383.97.78.373. 375.58.21.22.“35.2h6.2“3.436. 70.1na,3oo.141,151.u3o.323. Tie-breaking Cases 507.556.555.526. 501.563.562.526- 555.501.556.569. 527.569.526. 1770555055605270 555.556.621.527. 621 602.52“.533.626. 572.6ou. iii . I t'J' . it "1*...ij ‘7 1 '! I. a ,t 1:. mart-1 an t. VIP: ’ 4 559 APPENDIX III (cont'd.) Scale I'D o n 30 31 32 Oh 35 36 37 38 39 Cases Used lg Scaleb uoé,25s.222.139,2o7.254.15h.436. 273.70.130.2.192.316.370.“51. 291,28u.167,8u,226,227. 297ou029u509u693699383932203“?! 23503n803320510996u93603970859 1M5o146o30894.5:325.2u3u3509457o 2690270v215025091850uu99u5293590 376.338.3820317938u0759890121n 205,183.86,165,169,1h7.113,4u8, 148,103,10h,68,117,365,362,318, 377032a93460239v2u89278035593159 236,214.99-102,39h,80,b00. “6.369.383.6“.332.397.308.243. 350.457.75.89.121.452.185.359. -376,384,239,205,99~102,39h, 113.377.278. 297Ou020u50951 03603u8023503u7. 9.155.1u6.85.“.5.269.270.215. 338.317.382.4u9.86.183.165.169. 1n?.117,103.104.68,4u8,1h8,hoo, 25o.318,32u.365.2h8,236,362, 21h.315.80.355. 392.293.120.2880112quo'95989’ 201,3h. 51.“6.86.211.233n319.172.“7.50. 10.228.65.187.33.72.121.237.238. 317.183.99-102.39“.58.103.10“o 117,113,287,239,3h6. 195.“8.396.223.12“.138.153.363. 2u0,37u.261,n52,2u6,306,112,307, 137.3#4.3#3.453.335.39.#O.h1. 166,205. 229.79.230.23.56.371.256.55.78. 251,252,h21,h22,#23,160,150,179. u50,127.uu9,318.86.165.1u8,u58, 9.182.h00.51.56. 326,30h,186,253o72 Tie-breakinEICases 551.620.601.5h1. 539. 546.535 546.535 522.583.515.515. 521. 504.555.556.520. 511. 505,610. 513.51#,532.506. 525 62u,5h6,623.625. 536. ’k.¢8 CBC M..£.0‘.’u \ ms 5&9. ‘. ‘ ‘iX‘S. 9 e“ ‘ ‘,QOE$.S fr_ , . W‘>PH.6$ f * I a r0215} l '. .4... v {to c, f; . ‘1 prr h I I \‘ P ~ :" t‘ V :Ix ~\ ‘7? ¢ ‘0 \ ‘ ." v ..\" a) 'J ‘9 1‘ (h -l- .ov-I r... 3' ' a; 559 APPENDIX III (cont'd.) Scale No,8 no #1 uz “3 an #6 Cases Used In Scaleb 22“.53.1“0.347.185.98.16l.163. 181.27.171.17?.213.18“.328.329o 330.357.335.338.23“.268.382. 6.3.88.407.396. 96,h07,362.378.382.22h,338,18h, 185925093510171917703080335981- 68,3,38h,279.226,21h.268,381. 289,290,291,88,265,h52.376,380, 2h3.161,163.181,251.252,307. 171.177.16“o8.328u329.330.140. 306.24.346.53u396. 230,231,24U,349,23u. 390.103.10h.27#.109.h06.Zhs. 11o.u.5.308.159.121.136.387. 23u,338.268,323,29u,81. 99-102.394.12 .125o3“5.121.317. 128.177.159.“ 5.237.238. uOB-hI5,28u,285c286,31h,353. 327. 388.119.“33.26.305.43.#7.193. 197.187.61.87.163.213.317.3”1. 3h2,118,121,7,287,99-102,39u, Tie-breaking Cases 506.530.537 611,563,562. 570 501.527.526. 555.556.568.569. scale. giving their names and breakdown of votes. aSee Tables 1 and 2 for key to names of scales. bCases are given in the order of their fit in the See Appendix I and II for key to case numbers. Ranks APPENDIX IV of Justices on Scales 1910-1915 Period Justice Scale Number3 1 2 3 l4 5 6 7 8 9 10 11 12 Holmes 1 3 9 3 8 32 h 7 9 3 3 7 Pitney 9 11 7 11 5 2 9g 6 2 7 1 1% White 2 8 u 9 5 1017 5 6% 11 '9 11 McReynolds 10 10 5 8 h 11 5 11 a Day 7 7 6 7 3 6t :3 1 u 8 5% Van Devanter 8 9 8 10 7 3 6 9Q 10 9 McKenna 3 6 1 6 2 9 u E h 5% Hughes 4 2 2 2 9 3 3 8 3 g 1 Lamar 6 u 3 5 5 2 1o 8 g; 9 Lurton 5 5 10 h 10 8 10 5i 2 fig;lgg_ 1 11 1 1 1 1_' 2 1‘ 1 7 13 1'4 15 16 17 18 19 20 22 23 21+ 25 Holmes u 7 9 7 6 6 8 Hi 7 6 7 7 Pitney 2 u 3 5 1 10 9 1 2 1 1; 2 White 10 8 7 8 3 hi 7 a; 9 7 g 1% McReynolds 3 1o; 2 8 10 7 11 11 Day 7%: 2 2 2 1o 7 3% 8 5 5 5 5 van Devanter 9 10 5 10 h 9 6 6 g 8 8 10 McKenna 1 9 6 9 11 11 11 11 a 2 2 Hughes 3 11 a 3 5 a 3 g 9 10 6 Lamar 6 2 8 6 83 R: 1; g 10 1o 11 9 Lurton102 h 8 3 1 2 a 1 1 nglgnl_2. 7%. 1. .l..ml~ 2. #2412 —¥é_——— 26 27 23 29 30 32 33 3“ 35 36 3? Holmes 8 9 7 8 11 7 7 5 1 6 5 8 Pitney 1 i 1 2 i 6 h 4 8 1 1 E White . 4 8 11 7 9 8 5% 8 9 1o 9 & McReynolds 8 1o 9 u 7 3 5i 2% u 8 1g 9 Day 2 5% n 3 a 9 9 9 2 i 8 2 van Devanter 5% 7 10 1o 8 1o 8 6 1o 7 McKenna 3 2 3 11 3 11 10 11 2 2 Z 11 Hughes 8 u 5 6 53 h 2 7 6 3 g; Lamar 5% 3 6 5 5 5 3 1o 3 g 11 6% Lurton 10 5i 8 9 10 2 1 2% H? 2 Harlan 2 1 ’ 2 1 1; 2_ 8% 2i 3 560 .M.|~ .' *fib.¥’ n... . . ..91.‘ *5... .HWVHL tmwvél .t-h’vfidtvw4r ... .019: u .4... .7. minimum... .1: 9.12.6 fl. g’olfiké $3 ...v .. fl DO. I. PL r. m .- 11.- :3qu ( E D‘Vannd. [C‘DO P V 7.120..»5416201.\f[......00r\’...d.8 , . - u- ..n , I ,. ,z ... . n L M - .U - y a . 4 . w o. r. r. I, \I c. .; I b. w . j r : M . w ..w .. .7 \\ .. ‘M . . r4. . 1 . . .( m u . . e _ .... L U A - O P. A .h I m \n) n i. 0' . . .L H. .H 9M. .‘a. n I I y. (9* .. a. h ... m M APPENDIX IV ( cont 'd. ) 561 Justice Scale Number8 38 39 40 41 42 43 44 45 46 47 48 49 Holmes 6 11 4 8% 4% 6 7 8 6 8 5 5 Pitney 7 1 11 7 7 4% 1 1 1; 1 1 2 White 11 7 2 8% 8 7i 5 8. 7 7 9 10 McReynolds 1 9% 5 11 3 3 10% 9 11 10 3 Day 5 2 9 2 9 2 8- 5 5 4 6 7% Van Devanter 4 92 10 3 10 42 82 6% 8 5 3 9 McKenna 2 6 3 4 6 3 10 4 3 6 23 7% Hughes 8% a 1 1o 2 7 2 3 u 2 2 5 Lamar 8% u 8 5 11 9 5% 6% 11 9 u 5 Lurton 3 4 6 6 a; 9 3% 1o; 10 10 7 1 Harlan A;o 8 6 1 1 1 1;_ 18 1 _~ 50 51 52 59 60 61 62 63 64 65 Holmes 9 6 11 4 6 6 7 6 7 4 Pitney 3 1 1 11 1o 10 2; 9 3 7 White 5 1o 9 4 4 5 10 9 6 3 McReynolds 10 11 7 2 3 2 10 1 1 1 Day 4 5 3 9 7 7 4% 11 10 8 van Devanter 6 7 8 9 5 9 8 7 9 9 McKenna 1 3 4 6 8% 4 2% 9 5 6 Hughes 2 u 5 L: 2 3 a; a 4 2 Lamar 7 9 6 9 11 8 6 5 2 10 Lurton 11 8 10 7 8; 1 1o 3 8 5 Harlan 8 a 2 1 1 1 '2 11 11 1916-1920 Period 1 2 3 u 5 6 7 8 9101112131415 Holmes 2 4 ‘6 3 8 8 3 4 5 3 4 3 5 4 8 Brandeis 1 3 5 a 3 32 2 2 3 2 1 2 1 2 5 Pitney 7% 9 9 9 5; 9 8 3 4 5 3 4 2 5 2 White a 2 2 1 5 2 5 6g 7 7 7 7 7 6 7 McReynolds 9 6 3 7i 3% 9 6 9 9 9 8 8 8 9 Day 7% 5 h 7 u 6 6 9 2 6 5 5 a 3 1 Clarke 3 1 1 2 2 1 1 1 1 1 2 1 3 1 6 van Devanter 6 8 7 6 7 7 7 8 8 8 8 6 6 9 3 McKenna 5. 7 5 1 5 4 5, 6 .4 6 9 ,9 7 4 1 l. 11¢.” ...W ...!o. .énifldhu. I 1/_v.rt.1 ... . 5.727151 .a. . .1 .. ¢CQ0$3£3~1WW 1.4 .1 . . , , 1.1 .....wdffléfifid . A.£O111..?¢.1.1.,1Z.. a 1( |.L.wfl1.dw.l 1 .. . hikervylht S’nfl‘CJ .. yu .....ry... in u .. . . . . . ...... I 1.11 1‘ sao~o \Ot1Lr \r M .. 11 y 1.. P.“ ... W 1. .lAnx. . .1 . . ... -. .1, ‘C. 11.. P1 .1 1 .. . .....~ I. 1.0 :1 C..... .. . . . . . r; .. o. r5. 7 . 1 u 1 P1 1 s A .... k 1... 1. %2 APPENDIX Iv (cont'd.) 1916-1920 Per1od Scale Numbera Justice 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 92 38 54 176 76 3514289 58 1.6 3794 2 12 1.2 64 1.975273 1.2 12 8 31684 27.5 ...-2 1.2 741694283 12 12 632964185 .413695278 8 2 531692381 412578396 42369518j 324785196 346295182 532496178 6 14 5732 98_ r 8 .mSu t s 1 w. 1. O V 86V» n 8% edeey k mnnte r e amu1myumw HBPWNMCVM 31 32 33 34 35 36 37 38 39 no 41 42 43 44 45 1.2 18. 321.. 396 58 7. 5324 96 178 1.2 .2 7514 3592 12 12 318594176 66469812 2194. 56 378 1.2 12 92267427 22 677925143 1.2 121.2 1.2 532475179 2 148 95376 512794368 1212 711954368 2 2 453718196 413568291 53164829] I 8 M t s 1 1 81y . ..m ed..“ 1» mwnte r e 1 tIR a K 0P1 O 1 C HEP M CVM 46 47 48 49 50 51 52 53 54 55 56 57 58 h». 16 583297. 12 12 2 1.9524. 578 689715234 13.. 936254 17r 74196528 1.2 $2 1.2 53629317? 2 2 2 2 58 1.535952 51 2 794 386 .4 2370/5186 2 2 583518924 2 9 64187538; h 126 01.1.)..QJCU 7 1*: 1.9 314 79 8.26 Z r e M t s 1 m say m ev edeey km mnnte r amn1thm HBPWM CV v . . -) Hunt-$1024“ 7' «M. #163883? r: d?f.v.t.HIDi ,. .. x _ i F .«H f _ .u. A... .9 . L , 5.3.7:, ‘ ..A £3.“°18t!h.5 ..r. .r... n,‘..., C... . . Q " ... . y 3. J. a , ., .. (a. . 563 APPENDIX IV (cont'd.) Whole 1910-1920 Period Justice Scale Number“ 1 2 3 4 5 6 7 8 9 10 11 12 Holmes 2 8 lo 4 1o 3; 6 6 9 4 5 6% Brandels 1 4 11 6 5 8% l; 3 6 3 1 2 Pitney 11 13 12 13 7 2 12 5 4 6 3 4 White 4 7 3 9 7 11 8 8 10 11 11 13 McReynolds 12 10 7 12 8%: 13 9 12 13 13 11 Day 9 11 6 10 4 6 9 12 3 9 8 5 Clarke 3 2 :1 2%. 3 12 1; 1; 1 2 2 1 Van Devanter 10 12 ‘9 11 9 5 11 11 11 12 12 9 McKenna 5 6 2 8 2 7 7 7 7 5 6 12 Hughes 6 3 5 2% 11 Bi 5 4 5 7 4 3 Lamar 8 5 3 7 7 1o 4 15 8 10 10 9 Lurton 7 9 8 5 12 10 13 8 7 9 Harlan 1 13 1 1 1 3 10 2 1 9 621 13 14 15 16 17 18 19 20 21 22 23 24 Holmes 6 8 11 8% 10 6 7 6 5 8 6 9 Brandeis 1 3 7 1_ 3 7 2 2 1 4% 1 4 Pitney 2 6 3 7 2 1o 8 3 2 2 3 2; White 12 9 9 8; 4 5 10 8 8 9 9 11 McReynolds 13 12 12% 11 12 12; 11 11 10 13 13 8 Day 9 4 2 4 6% 9 9 7 9 6 7 7 Clarke 3 2 8 3 1 3 1 1 6 4; 4 1 Van Devanter 11 13 5 13 11 11 12 10 11 10 10 10 McKenna 4 11 6 12 13 "12% 13 9 7 7 8 5 Hughes 5 10 4 5 6% 4 5 5 3 3 5 6 Lamar 8 5 10 1o 8% 8 3 12 12 11 11 12 Lurton 7 7 121}: 6 8,, 2 6 13 13 12 12 13 Harlan 10 1 1 1§_5 1 4 4 41 1 2 21 25 26 27 28 29 30 31 32 33 34 35 36 Holmes 1o 10} 9 8 10 13 8 7 6 5 7 3 Brandeis 5% 3 4% 12 9 3 4 1 7 1 1 1 Pitney 2 1 1 1 4 4 5 5 5 2 2 4 mute 13 6 12 11 8 11 1o 8 9 12 12 11 McReynolds 9 9 11 4 2 6 6 9 3 11 13 13 Day 7 4 8 5 5 5 12 10 11 8 6 8 Clarke 3 2 2 13 3 1 3 4~ 3 3 3 2 Van Devanter 12 8 10 1o 12 1o 13 11% 12 13 8 1o McKenna 4 5 3 3 13 7 11 111 10 4 9 9 Hughes 5% 10. 7 6 7 8% 7 3 8 7 5 7 Lamar 8 7 4% 7 6 8:1; 9 6 13 6 10 12 Lurton 11 12 6 9 11 12 2 2 3 9 4 5 Harlan 1 5_2 1_g_2 1_ 1 10 11 5; . .t.‘ I! 05 ‘ Ufa-169.”. see .1 . 1 0 t r' 0‘ .1 l . m2)...» . . .. on... I .1 I . . . . .5 ”Mn“! a , .7 , '\ oxsegtprnt‘r P:,: .. .. .,r. x p. f as r. -4. J. 3.5.1 “Is... J ... 7.”: av- « t. -l . i 0 ~ .. r . a C (2.x «3 _ : . . . é .\ r I I.- V. I . . . , . v. . . v A“ n‘. A ...l... 1 ‘7 i I... l V y I . I. . . a '_ I; n! 0— J. Int»... , .. , L . 7 \. J.P.;J «\Ir (A ("11‘ m H... q. a . . , . .. 6,. I r» . 7 v .. . .. .4. .1 I.~ P __, ,1 _ 564 APPENDIX IV (Cont'd.) Whole 1910-1920 Period Justice Scale Numbera 37 38 39 4O 41 42 43 44 45 46 Holmes 7 7 13 3 10 5 88% 6% 6 Brandeis 3 8 2 2 10 4 5 3; 3&1 Pitney 2 8 2 13 6 11 4 white 4 13 9 5 10 8 8% 5 6; 10 McReynolds 111 2 11; 6 13 .10 11 12 12 11 Day 6 6 4 8 5 6 4 9 9 7 Clarke 1 1 2 4 2 2 5% 1 5 2 Van Devanter 8 5 111 12 3 12 10 10 11 9 McKenna 13 3 8 7 4 9 3 11 8 8 Hughes 11% 10% 6 1 12 3 3 4 5 Lamar 9% 101 6 9 7 13 12 6 10 13 Lurton 9'} 4 6 10% 8 6 12 6 13 12 Harlan“ 5*5 12 1o 10; 1 :1: 1 13 12 3 For scale number 6, in the 1910-1915 period and the whole period small numbers indicate an anti-civil liberty attitude. In the 1916-1920 period. small numbers indicate a pro-civil liberty attitude. In scales 28. 49 and 52. small numbers indicate an antl- debtor attitude. In all Judicial power scales except 41. small numbers indicate an anti-Judicial power attitude. Ranks with 3 indicate two- or four-way ties. . A ._.__ .— aSee Tables 1 and 2 for full names of scales. See Appendix III for cases used in scales. '. . .f V .1. I.I ll‘ . . I , . . T. 1. D 1" . . n loll. ,I Fwd ’. H . .9. 1‘5 ... f... . .1.. .. .1..l. _ \ 1 . yfl\ a“. at a . r1311: . It. . 11101.net Odo x I . . . . . wk a.“ . ,r . .., a I. I I 1 .... 0 ...»! . . - .. ..|.m.v . J... €943.9-L1... 03,...1bsdxn..m,.ra .I. a 5 L ... 2. 1. . n” .\ U . . .19.. far: ..1 :1. .3 .1. . t. . .... ya. "a . . . 1. l .. 1 . ..flr . .3. a .1 . i . .. .y .. . . ,: ..n m .t.. m 0 steel .1.. 51:! ... 2 , ,. \ . 1. . . I: . 1. u ‘ APPENDIX V Non-scaled Responses for Individual Justices in Scales 1910-1915 Perlod Scale Number3 2 3 4 5 6 7 8 931011121314151617 Justice ll- y— 21002123002 00102023010 10000100100 00102121010 31200132120 00102010000 03020022300 2341002010L 11000011120 00000001000 40000010104 00010001000 10001000010 20100131124 01301023003 21210131331 r e .S t d n _ 1 a o v sv. n m s n eeey erO mnte 8h .3 aulmyuwmem HPWMMVMH L 18 19 20 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 3000002000; 02021012000_ 20100031120 00000001000 62101011102 12001022110 751.331.53.421. 00000000000 10201021000 21112111010 22010012110 32100020000 65434355350 01010000010 01100010011 01201010000 00001010000 20101010000 13001001000 mammmmmmmmm 4o 41 42 44 45 46 47 48 49 50 51 52 59 60 61 62 63 64 65 35322061431: 12111031010 01100010210 35303104100 00100020100 01001000000 00000010000 11001111000 0121001000L 62003021101. 01000000000 02010002000 22512072001. 01100010024 01000000000 11000001000 04211021300 13010021010 00010022100 mmammmmmnm 565 , ‘0 I.-* ,. x i I- i - .4 ....us)!!;fif at- N-W..‘H. , H. - . H- .. 542V. . . u. no .L 111*. I... u I .. ‘4...,IID..,..I.*L «9.00.. 0 0 It! p.43 OLQIOCOOOLO w 01£000r00§us 4": (SS ES .17. Murmur! In. . ..- 3.10°0£O,,...?J. -1 -.,Pi a. n. 4.10.8.1...,n.u\c..u.0 H .4? \O 000... ...r n . 4. ,, .. ... .. 3133?.“ 3 04.3001. phomlfl "- o Auk“ L “9’1 L“ 1. , " ‘fVl’JnI‘IflMj‘ %6 APPENDIX v (cont'd.) 1916-1920 Per1od Scale Number‘1 2 3 4 7 8 9101112131416171819 Justice 1 000015411 022101012 003121105 101000001 001000001 114300412 10401100 511501002 101100001 012220000 000000000 001100002 000200102 100350200 1 30144131 1 101101101 r 8 M t a 1 w 1 O V 80y n 89 adeey kD ummumynm O 1 C 1 ngwnmcv 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 01410041 000200001 216220312 020010101 27825052 030010010 001110003 10203131; 005212100 000000000 01600101 001000101 127301010 011100101 013113202 205122220 r 6 M t s 1 m i o v 88y n 68 Edeey kD mmnte r arniwwhm HBPWM CV 36 37 38 4O 41 42 44 45 46 47 48 49 5O 51 52 53 54 57 58 .10200000£ 101230400 159483m46 102310120 003000004 628521323 022134010 101011000 004201100 218358613 112000000 072011100 00302110 00221011 102010100 10214120 20002002 00010000 100300001 mm mma km“ aSee Tables 1 and 2 for full name of scales. . r» .. i tn [00.110300 0! . r. a. h. n. ,...Z>r.,\ :7: ., , L .. .. U ..., by... W,» __ . + $13; I ... .. scl .. u 0' .. . on . Wmluwv‘u.., .94 ...I| mimic? -..”...zlm L. .BJ. ;. , ... ,.. ,.. ... ... . n .l .s. .tflle $0.!138912 M refiffitSb Jr 23204151 OISItfn- I tosozoxo. .fi 00020010 S m” ... A L .. . u. I” _.~ APPENDIX VI Ranks of various Courts on Socioeconomic Status. Political Party, Economic and Libertarian Attitudes Low numbers indicate lower-class status. Democratic party identification, "liberalism". and libertarianism. ‘ Supreme Court since the New Deal £19h1-1966) 3338 Part C-Scale E-Scale Rank 35.21% ..Mfi. namcd Goldberg I 7 11 Fortas 2 6 h 6; Douglas 3 6 2 3 Vinson 4 6 20 8 Minton 5 6 19 12 Murphy 6 6 1 1 Rutledge 7 6 3 h Black 8 5 5 2 Warren 9 18 6 5 Stone 10 18 9 19 Brennan 11 6 8 6“ Frankfurter 12 1h 11 16 Jackson 13 12 12 18 White 1a 13 1o 19 Reed 15 6 21 13 Whittaker 16 18% 16 19% Clark 17 6 18 9 Roberts 18 18% ink 21 Burton 19 18% 17 1 Stewart 20 18% 13 1 Harlan 21 18% in; 17 The Stone CourtL19fll-19h6 e Douglas 1 3 4 2% Vinson 2 3 11 10 Murphy 3 3 1 2% Rutledge u 3 2 a Black 5 3 3 1 Stone 6 10 5 9 Frankfurter 7 7 6 7 Jackson 8 8 7 8 Roberts 9 10 8 11 Reed 10 3% 9 5 Burton 11 10 10 6 567 I‘.' E“! ‘3 t t ‘3‘ J ; geomawnl bf’un ' "'. 568 APPENDIX VI (cont'd.) Vinson Court (1996-1952) SES Party C E Rank Rank Scalef ScaleB Douglas 1 Vinson 2 hi 10 5 Minton 3 u 9 6 Murphy # h 1 2 Rutledge 5 h 2 4 W Black 6 9“ a 1 f Frankfurter 7 lo 5 10 R Jackson 8 9 6 ll Reed 9 h} 11 8 Clarke 10 8% 7 7 Burton 11 ll 8 9 Taney Court (1846-1858) 8 SES Partyh c E E k Bank Bank Scale1 ScaleJ Scale Catron 1 3 8 25 5 McLean 2 10 1 9 . 11 Curtis 3 ll 2 10 10 McKinley h 3 h 7 7% Grier 5 7% 10 6 5 Campbell 6 3 3 2% 2 Woodbury 7% 6 11 8 7% Nelson 7i 3 5% 4 h Wayne 9 9 7 11 9 Taney 10% 7% 9 5 6 Daniel 10; 3 5% 1 l f 8See Appendix VII. bClear Democratic party identification is 6. clear Republican identification is 18.5. cBased on Schubert (1965b, p. 125) averaging scale scores. dIbid.. p. 185. 6Clear Democratic party identification is 3.5. Repub- lican is 10. C-scale and E-scale is based on Pritchett (l9h8, p. 257). 1‘Based on Pritchett (1954. p. 225). g 569 APPENDIX VI (cont'd.) “Based on Schubert (1965a) ranks for these terms. h11 = Whig, 10 = Adams Republican, 9 = Democrat turned Whig. 7.5 = Federalist turned Democrat. 3 = Democrat. 1Based on a revised scale by Harold Spaeth which involves slavery, criminal cases. and rights of women. JBased on the average of scales by Harold Spaeth involving business in a context of federalism and the Com- merce Clause. kBased on Schmidhauser. 1961. APPENDIX VII Reason for Classification of Justices in Ranks: Father's Socioeconomic Status and Occupation Goldberg: son of Russian immigrant Jewish peddler: died when he was 3. Fortes: son of English Jewish immigrant, cabinet maker. lived in Memphis slums. Douglas: father Canadian immigrant, itinerant preacher, died when he was 5. Vinson: father was town Jailer in Louisa, Kentucky: died when he was young: mother supported family by running a boarding house. Minton: son of a poor Indiana farmer. Murphy: son of Irish Catholic lawyer: Judge Murphy worked in a factory early in life. Rutledge: Father was a Baptist circuit-riding preacher. Judge Rutledge taught school, had a long illness. and apparently lived on the edge of poverty for some time. He obtained a law degree at age 27. Black: son of a small storekeeper and farmer in a poor rural area. Justice Black was an unsuccessful small town ' lawyer and a police Judge. He ran for the Senate with practically no funds. Warren: Scandanavian immigrant parents: father a skilled mechanic. Stone: father a Canadian immigrant, very poor, acquired a small farm, engaged in farming and "trading". Brennan: father an immigrant Irish Catholic union organizer. started as laborer (a coal heaver). Frankfurter: father was a German Jewish immigrant, middle- class proprietor. , Jackson: father operated livery stable and bred horses in rural Republican area. Bryon White: father was lumber dealer and Republican mayor. Reed: son of prosperous country physician. Whittaker: son of large farm owner. 570 ..l.' ‘ ‘.'ryr .0 Ad ’,|‘ .v HfJ-r‘ 4. qefiuu! YT!- fl/4h-u 'n'mf “‘1;- uerwat Hit 2 er: etdqn ,rf’ rm! nathaugfl,éx .3 Bligv$ 11v" Ewe: 83" - "(m “mac! :- .enwod'§»«{wy 1' veoq A J ’“lnfi MBI1I ‘n 1! "IT33 1103T F oyfioq B hfl‘”-’ IIIuO}?--fi ,' 1 '2‘ yvh, ..qoxq ll P.:Lv .muac.au-¢j MTII OVE '11 571 APPENDIX VII (cont'd.) T. Clark: son of prominent lawyer. Burton: father was Dean of M. I. T. Roberts: son of corporate businessman of prominent Philadelphia family. Stewart: father was wealthy lawyer. prominent. also a Judge. Harlan: son of wealthy lawyer. prominent family, grandson of Supreme Court Justice. Catron: son of small farmer McLean: son of skilled mechanic, midwest farmer. Justice McLean was an Adams Republican. Curtis: son of ship captain. Justice Curtis was a Whig. J; McKinley: son of "professional" man. Grier: son of clergyman. Justice Grier was a former Federalist turned Democrat. Campbell: son of lawyer and state legislator. Woodbury: son of businessman or proprietor. In his first election, Justice Woodbury ran with the support of Federalists against a Democrat. Woodbury later became a Democrat. Nelson: son of well-to-do farmer. Wayne: son of plantation owner. Schmidhauser classifies Justice Wayne as a Whig although he was appointed by Jackson. Taney: son of plantation owner. Justice Taney had been a Federalist but Joined the Democratic party when his party disbanded. Daniel: son of plantation owner. k 1“ Taney Court data is taken from the National Cyclopedia 23 American Biograpgy. archive data from Jofin Schmidhauser s Rackground Characteristics 2; United States Supreme Court Justices, and Schmidhauser, 1963. p. 591. Other data is taken from Current Biography. The Stone data is taken from Mason, 1956, chap. 1. \IQMaF .1"! a . . . , Thu}! .. to" *‘rié‘lamp I“ _ V f . .11 “'53. V ' wt, ‘1 a ‘: .fi 2711111 mm. A '- Mild“. ‘, 95)}: use", . 9 e . #30 «11:19 . ...} w «r 'f . ' "Wm" ‘10:: - .‘ "I , 7v! gnaroio'“ I .: Lrvua 3a .' a” 0 322171. wsmaaL '3', _ . it? I -’:H'Z‘.‘Ud"lb t, .1 119:1!5 ‘43. 151‘”! f" ..., ".‘:‘ an»: . APPENDIX VIII Political Party and Socioeconomic Status Relationships with Attitudinal variables Rankings of Justices are as follows: low numbers indicate lower-class status, Democratic party. "liberalism”, and pro-civil liberties. Warren Court £1358-1266! S Party C-Scale E-Scale Rank Bank Bank0 Rankd r Goldberg 1 3; 3 8 Fortas 2 3; 2 6 j Douglas 3 31 1 1% i Black a 3: h in Tau correlation warren < 10% 5 3 of part with Brennan 6 3§ 6 4% SES = .KB. i Frankfurter 7 8 11 11 Significant at White 8 7 8 7 .01 level. 9 Whittaker 9 10% 9 10 Clark 10 3% 10 u§ Stewart 11 10% 7 9 fiarlan 12 10.1: 12 12 Attitudes correlating with Attitudes correlating SES with party rppk Tau Signif. Tau Signif cance Economic equalityd .41 .03 .54 .008 Civil libertyc .70 .0008 .h6 .02 Criminal cases .66 .001 .h3 .02 Judicial activism .70 .0008 .50 .01 Socioeconomic equality . 58 . 001$ . 1&9 . 01 Subversion .56 .005 .93 .02 Free Press .51 .03 .50 .003 Public interest .58 .01 .57 .01 Labor .70 .005 .57 .01 Religion .89 .001 Contempt of court .89 .001 Indigents .61 .01 Pro-union, anti-employee .96 .02 Jury .58 .01 Religion .52 .01 Self-incrimination .99 .02 Obscenity: state .99 .02 Reapportionment .52 .02 Voting Rights .51 .01 Workmen's Compensation .59 .01 State taxation .63 .01 Federal gift taxation .68 .01 Patents (all scales relating to .61 .01 regulation of competition correlate highly.) See Leavitt (1968)for definitions of above scales. 572 573 APPENDIX VIII (cont'd.) aSee Appendix VII for data on which ranks based. bClear Democratic party identification is 3%, clear Republication party identification is 10%. cBased on the average ranks of Judges on 35 civil liberty scales. ' dBased on the average ranks of Judges on 18 economic scales. These do not include labor scales 13 12 Scale Number8 4 11 APPENDIX IX 10 2.5.:3 1.7463 Shifts in Banks of Justices between the Two Periods Studied Justice Holmes Pitney White McReynolds Day van Devanter 5 6 -1 McVenna W 11 21 ++ ++. 9. .1:J “(bib 1 26 4 51 W 124 2 + .+ . + _ 2125634 1; 1&7ACQth. 257164. 12 $8812 1 147242 W 2;?82 n4 + .+ - L38. 2214476 1:41¥4r379011 01 Dun HP W\Rl VM 20 27 19 26 12 W—Mql7;31;32 qlqglzfiwz if 18 25 241736 261435 17 24 23 16 14 22 a 1*. .1 - g+1a 11H509:DMB alU}09:> 1&7hw32u2 .17L33202 m mjmmm _. 1IQVLJ171 I w . . . 1 i. J .n . pl. (.1 ...? t . a) a 1 r. .. 1 .... 1.. V J a. . 2 . in. u v . ~ P ,n . .— . v .H .b - V ._ a I . x . .. a. J.. _ m r . .. _. n . W. .v n. . w . 4 .. ... fl. .1 _. . 1 n . w m _. t i _ .. 7 .. . I. . . I . .. I — I -— wr— . . v ' l-J ow‘ u“. --.|- APPENDIX X Ranks of Justices on Background variables variable Justicesa North lvb 4 8 h 12 9 h u h h 5 East 11v° 1g 1; a 11 5 7; 7; 13 12 3 So-E-wd 8 6 8 2 a 10510;: 13 12 8 Religion9 1 13 4% 11; a; a; #5 4% 11% 8 1o 4; 9 Judge exf 12 2 11 5 2 9% 6 9% 8 2 Electedg 13 11; 3 a 10 8 11% 9 1 7 Atty Genh 5 5 5 5 111 5 5 111 11% 5 5 5 115 Inrnnnrgrm:1 9 21 9 9 9 9 241» 9 22 2% 9 9 9 OrphantJ 8% 8% 8% 1% 8% 8% 8% 8% 1; 8; 3 8; 8; Asek 12 7 n 9% 12 8 52 3 11 12 52 9% 13 Yrs Ctl 4 12% 1o 2 11 5 12; 8 3 8 8 6 1 St orrm 1 6 5 9% 13 9g 8 12 11 3; 3; 7 2 St Judge“ 1 7 2 a; 7 9; 12 11 13 7 3 92 #2 Urban bn° 1% 3 u 13 11 6 6 6 1; 8% 11 8; 11 Urban lvP 1 2 6 13 5 8 4 9 1o 3 7 11 12 Law Profq 1% 3% 10% 10% 32 10% 10% 3% 10% 1% 10% 32 3% Colleger 2% 25 2; 13 5% 5% 8 7 12 25 1o 10 10 North bns a 8; a 11; 11% u a u u a 11; 11% 8% East but 1 8 2 13 1o;- 6% 611512 a 3 5 101 9 Pres'aptu hi 2 8 11 2 91 2 8 12; 8 8 8 12; 9 9 Pty apptv 9 2 h 2 9 2 9 9 . 9 9 9 3See Appendix V for key to Judges' names. 13Period of time lived in North as: compared to time lived in South. h = lived longest in North. 12 = lived longest in South. . 576 577 APPENDIX X (cont'd.) 0Period of time lived in East as compared to time lived in West. 1% = lived longest in East. 13 8 lived longest in West. dPeriod of time lived in South as part of a South-‘ East-West continuum designed to compare this continuum with attitudes toward states' rights. 2 = lived longest in South. 8 = lived in East. 10% = lived in Midwest. 13 = lived longest in West. ePrestige of religion ascribed to. 1 = highest status religion. 13 = lowest status religion (although Brandeis became a protestant. he was brou ht up in and here class- ified as in the Jewish religion. fPre-Court Judicial experience. 2 = no Judicial experience. 13 = most Judicial experience. 8Time spent in elected office. 1 = longest time spent in elected office. 13 = no time spent in elected office. hAttorney General office-holding. 5 = no experience as Attorney General. 11% = former Attorney General. 1Immigrant status of parents. 2% = had fathers who were immigrants to this country. 9 = fathers were native born. father died at early age. JOrphaned at young age. 1: = . = neither parent died 3 = mother died at early age. 8 during childhood of Judge. kAge of Judge in 1910. 1% = youngest on Court. 13 = oldest on Court 1Years of tenure on Su reme Court in 1910. 1 = longest tenure on Court. 12 = shortest tenure. mYears of state office-holding as compared to years of national office-holding. 1 = largest proportion of time in state office. 13 = largest proportion of time in national office. nProportion of time spent as lower court Judge as state Judge as compared to national Judgeship. 1 = largest proportion or longest time as state Judge. 7 8 neither state nor national Judge. 13 = largest proportion or longest time spent as national lower court Judge. °Urban versus rural birthplace. 1% = birthplace in largest urban unit. 13 = birthplace in most rural area. - berg! - 861311. JL3£IOT 70 H.311 309”: l#,, ”H '1 ion. .. riniwst- .. .4: Ibuc .-’ " :30m 9 {I W1 nt 3 {I .90 . ‘ 1'7 M180 .2. . r 2' ' - .[amo .'.¢ .. 71.35433" 21d: 03 ' 1‘, r. rtuw, 33 -‘ : ."no 33 ”1:45 flfvlfil ‘20 rv ‘ “-x‘ :11 onbflt hag; “‘ I . ... Lune: fi- I? ‘ :. yet) no , -' 15361:; -.;:..Ofi$lfl “1': ' 6.1.14.1. 18mg: . Iii-'13" a {I}? 578 APPENDIX x ( ont'd.) ’Time lived in urban area as compared to time lived in rural area. 1 a largest proportion of time lived in most urban environment. 13 = largest proportion of life experience in most rural environment. qLaw professorship. 1% = full time law professor. 3% = part time law professor. 10% = not a former law professor. E- rStatus of college attended. 2% = attended highest status college. 12 = attended lowest status college. 13 = attended no college. sNorthern versus Southern birthplace. h a born in North. 8% = born in Kentucky. 11% = born in South. tEastern versus Western birthplace. 1 = born in easternmost environment. 13 = born in westernmost environment. “President appointed to Supreme Court by. 2 = Wilson appointee. 4% = T. Roosevelt appointee. 8 = Taft appointee. ii = Cleveland and Taft appointee. 12% = appointed by pre- Progressivist era president. This variable aims at measuring committment of appointing president to Progres- sivism. vParty of president who appointed Justice. 2 = appointed by Democratic president. h = received appoint- ments by both parties (White). 9 = appointed by Republican president. .qt - crew .- 355.1: «301.10! *4 _ «Ff-a U . ...,onsafi‘. 4. 1:11le _ "‘ 3}: a1 } c , ‘ j .. ‘ ., :2er , m - r fmlant. ‘ , J ‘ '. 1 3T but (“I 31"? .1;- :3 ' ’19"; h- ; .1 firro . ' 1‘- ‘.n .I. I I I, APPENDIX XI Scale of Economic Cases on Fuller Court- Judges Cesesa 522 566 542 517 565 567 552 523 529 519 505 550 54? 540 560 Ha + + , + + + Fu-+ C) 4- + + + + 1+ 1+ «r 4» +» + + + UK + ;+ (3 (j +- +. + + + + + + '+ (3 23 Ho + + + + + + + + + + + + + + No + + + + + + + ,+ + + + + (j (j -+ Dy + + + + + + + + + + + + + + + Lu+ + + + + + Wt + + + + + + + + + ’ + + + 9C) 4» +1 + + + C) 4%; + + #1] B1: + + + + r- - — - - - - G) v 8/1 8/1 8/1 8/1 8/1 8/1 8/1 8/1 8/1 8/1 7/1 7/2 7/2 7/2 7/2 546 53 31 525 573 ‘50“ 530 501 551 553 523 521 520 515 516 511 1u1+c3 4» +- + + + '+ '+ C) (D C) (3 () ()' Pu + -+ C) CD +- + + ~+ .C) 4- +' +1 + + + MK + 1+ CD (3 g? +» + + + + + + + + + Ho + + «+ (D (3 ,G9 C) C) e- + + + + [7: Mo + + + + + + + + + f - - - - - - Dy + II- - + + + * + C C '- O O - . Lu + + + +;j‘- - - - - - - Wt + + + + f c n- u- - c- - c- c- - - O Pe - — - - (D Bw- o e o - - - - - - - V 7/2 6/2 5/3 6/3 6/2 6/3 5/3 5/4 3/6 4/6 3/6 3/6 3/6 3/6 2/6 568 509 527 507 57a 575 510 5&9 5u1 539 526 569 512 sun Rks Ha + + + 1+ (j (3 C) + + +1- 1 Fu 9 Q Q 7" + + +J - .- a- - - c- a 2 MK+ + I O O C u - - - - - - - - 3 MO . - O - O C . D C II - Q - u 5 Dy - - - - - - - - - - - - - - 6 Lu C O I- .O , n c- - a - 7 Wt - - C C C O O O O D C - C C 8 Br: - (9 - - - - - (49 - 10 ‘V 2/7 2/6 2/7 2/6 1/7 1/7 1/7 1/7 1/7 1/7 1/7 1/7 1/7 1/7 Key to SymbOlac Haa Harlan. Fu 8 Fuller. MK = McKenna. Ho a Holmes. Mo = Moody. Dy= Day. Lu 8 Lurton. Ht 8 White, Pe - Peckham. Bu 2 Brewer. v = vote on case. Rke = Ranks. + 8 vote for economic liberalism. - - vote against economic liberalism. .0 8 non-scaled response, Q, H. II .851 aSee Appendix I and II for key to cases. 579 580 APPENDIX XII Scales of Liberty Cases on Fuller Court Criminal and Negro Civil Rights Judges ' Cases3 532 506 537 571 571 561 502 570 518 Ranks Harlan + + + + + + + Day + C) Moody + + + + + Holmes Fuller Brewer White McKenna Peckham, Lurton Vote 6/2 5/2 5/3 u/s 2/7 2/7 1/6 1/8 1/8 C.R.= .9h0 III+++2++ I I II I-+4-+ I II I II I II I II I II I I II I II I