THE uiMENSIQNALI'TY 0F DECISWN MAKING OF THE 1943-1945 STONE CQURT: A COMPUTER DEPENVDENT ANALYSES 0F SUPREME COURT BEHAVIOR .- THESiS FOR THE. DEGREE 0F PH; D. ‘ 'MKLHSGAN STATE UNQ‘EERSiTY‘ PETER GEORGE ‘RENSTROM 1972 fin“ LIBRARY 1 Michigan State University Ww—w- “r- This is to certify that the thesis entitled THE DIMENSIONALITY OF DECISION MAKING OF THE I9l-II-19LI5 STONE COURT: A COMPUTER DEPENDENT ANALYSIS OF SUPREME COURT BEHAVIOR presented by PETER G . RENSTROM has been accepted towards fulfillment of the requirements for PH.D. Aegean POLITICAL SCIENCE / {KKK /Q/;/ W Date‘Z/nga'cifrr/z; // /¢7p{ 0-7639 IL down-I. ‘ he I 'oonaide' I ”high. ‘I.. . - . , - ~. - m “nae: ? .\. '. n "to ul‘.‘ 4111' ' .; :..~ ‘ -I “3.38 Open 3.2.! "5-" .V .. hue. I ...c I. Spaswsp he uworngcc' ' :Iw r-r . w, span.” 93401. “t? -’ :J'F'fi‘l"‘&o ccaw r-u'a: .~.;‘ xmtfiw, r'I-‘I‘ Iowan. Inn- 0 mew“ era 03"- . u an the. waist-.1 mud of “m ”manta: «ti-sum! at «was. is “shit; “mandamus-Inna oi st. mm ten-nod, you. . f A 7 f' .-_ ”HM—1-, A. 'V., ‘ . l p“ ‘ v. I 13 I I» I I ‘ I . ABSTRACT TEE DIMENSIONALITY OF DECISION MAKING OF THE 19111-19115 STONE COURT: A COMPUTER DEPENDENT ANALYSIS OF SUPREME COURT BEHAVIOR By Peter George Renstrom This research is an examination of the dimensionality of Supreme Court decision making. The historical period chosen for this research are the l9hl-l9h6 Terms during which Harlan Fiske Stone served as Chief Justice. The primary focus of this research is the determination of the psychological determinants of the Stone Court's decisional behavior, and a consideration of the relationship between values, at— titudes, and ideologies in the process of judicial decision making. This research also undertakes an examination of the various voting alignments relative to small group and social background analysis con- Bests. t I I The research builds upon the work of C. Herman Pritchett, Glendon “Men, and Harold J. Spaeth. The theoretical foundation of this re- bitch is the stilulue-response model. The fundamental constructs of Mad by concentrating on the behavioral component of attitude :I m Hilton Rokeach'e conceptual definition of attitude is used V . "a “9‘" 0’-" :fi .u -5 ' new - "" c .1 F . ipOa ::-.:a:.r.5 ‘ 5-‘5 . M ' - .e OI I' “2:1: 31:13.3 .- . . E". wee -; 2......4 :38 33:10.: ' . 'I e‘. 2 '- 3" I .99: ee-o r. - I . u 'D‘I--e 0 As 1 \HP db‘v‘s ¢EUQSA 5 2'2":"d.'." 2-. ‘- .u...I. e m"! a... ’C‘I a. he.“ 1C PTOV‘. 9‘e' ‘I \.‘-M‘ e .' a . ' “Emmi; mt “"'?I‘Eie:esao' ‘ g"‘-._'\ N. . “YaumuI LII‘I ‘ .. I a. mint. ‘r.e Atlt 9'5": I' "' 3‘ Weaent f~ lit-RE.‘ w“ Peter George Renstrom The computer-dependent data analyses required separation of the non-unanimous cases into distinct categories. Guttman scale techniques were used to generate the necessary order relations. The scales were defined with emphasis on maximum specificity and substantive refinement by employing the notions of attitude object (A0) and attitude situation (AS) derived from the Rokeach formulation. Four hundred ninety-eight non-unanimous decisions were rendered by the Stone Court in the five terms under examination. 97.h% of these cases (I485) were fitted into sixty Outtnan scales to provide the basic universe of data. The scale ranks developed from the Guttmn scales were used as the raw data for the computation of Kendall tau rank order correlations. The resultant inter-correlation matrix was used as the input for the factor analysis and cluster analysis computer routines. The empirically defined decisional dimensions subsequently became the basis for the social background and bloc analyses. The factor analysis revealed the existence of three dimensions. A uni-dimensional finding clearly sets the Stone Court apart from its i-ediate predecessor in that a single dimension no longer is sufficient W madly describe the collective and individual behavior of the 9391‘!“ Court. The Stone Court, thus, is found to be a transition court '1! terms of movement from a uni-dimensional to a multi—dimensional 'ficieional character. The three empirically-defined dimensions were labelled Judicial “2hr, Governmental Regulation, and Administrative Oversight. These three gym... contained some substantive overlap although some independent rietics could readily be seen. The Judicial Power dimension Peter George Renstrom encompasses the proper role of the judiciary in terms of institutional linkages between the Court and other decision-making authorities as well as the policy orientations of the members of the Court itself. The dimen— sion reflects the traditional (but especially relevant to the Stone Court) power-role consideration, and the appropriateness of Judicial initiative and assertiveness in policy determination. The Governmental Regulation dimension is relatively straight-forward in colparison. The dimension represents the fundamental attitude of the Court to governmental regulation in the most general sense. It entails regulation of the economy, but also the notion of nationalizing regu- lation and regulation precipitated by World War II. The Administrative Oversight dimension is an interaction of the other two dimensions. The cases of this dimension focused upon legitimacy of regulation and the role of the Court in reviewing administrative decisions. Also present, hwever, was an equity consideration. The Court seemed concerned with how it could foster efficient and just administrative operations. The social background analysis of the decisional propensities of the Stone Court members revealed that only political party affiliation 18 urginally predictive. The bloc analyses by dimension conformed “1‘! Closely to the blocs initially described by Pritchett on the basis 0! his categoric definition of the Stone Court cases. H- 'l'n'~- S O on .— . ‘ a ‘I" w l\‘ "0 O I ...I‘ rue-.- Ox THE DIMENSIONALITT OF DECISION MAKING OF THE 191.1-19IIS STONE COURT: A COMPUTER DEPENDENT ANALYSIS OF SUPREME COURT BEHAVIOR By Peter George Renstrom ~ I —‘_—E-_44 ,I fir—‘—————— ) A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Political Science 1972 "5‘3 ' 4 I Where {comm .J '4'”: .- ‘n'mial an} 3.2 \ 1 ‘ a 2145': gag-m; «(g 1..-..4. .m ACKNOWLEDGMENTS Y'T’sv‘. It is impossible to adequately acknowledge these persons who ', ‘ made this dissertation possible. Nevertheless, several people {gritspecial recognition and a sincere expression of thanks. I must '- ‘ ; 'ujtion Professors Duncan H. Baird, Dorothy R. Dodge, and G. Theodore O ‘Y "mtau of Macalester College. Their stimulation, counsel, and friend- in .. I - _-g§pcrience possible. I must also thank Professors LeRoy C. Ferguson chip mde w undergraduate experience enriching and my graduate *QndCharles Press of Michigan State University, members of my dis- fl: floatation committee. Their availability, patience, and helpful . criticism have facilitated completion of this enterprise no end. ‘ e ,1} very special acknowledgement must be directed to Professor - J. Spaeth. His encouragement, tutelage, prodding, and friend- we made this dissertation a reality. I am most grateful for Sarah, out thanks for being Sarah in your own inimitable also thank my three "kids" for providing much needed and Kalamazoo, Michigan February 1972 yap-1‘ ., . 'r-r?"“" f ’7 r- I ii . ‘ ( "7'77 -s. uh. .. ‘ I a. r: 50 a can. our,“ o...--- g us‘ . Io OQOIlL-'~...... ... ----'—npe O‘— IC‘I.- 1 >— Mmea~l O 9-- I" I. kitchen as: a 32.35021 ‘3': Toward Eject? .. .l I .4 Fence. . '3. -v~ .1720" y?" .‘ .‘edu~a h-‘u .LTL‘HJQ. .. A. P ‘ “e 532111: L1- Cori I A r. ,M‘. Pam ‘ h s c. the DUbStal §.l. The 5'2- The 3.3. Tee “ ., 'J Trm U. i- ‘v 3. wt! 80310.. ‘¢‘ Clust :. Ker‘ N40 “7‘ A .. Lwllv‘js e x \a‘ V W TABLE OF CONTENTS LIST OF TABIEOOOOOOO0.0...0.0.0.0....OOOOOOOOOOOOOOOOOOOOOOOO V LIST OF FIGURESOOOOOI0.00.00.00.00...OOOOOOOOOIOOIOOOOO0...... vii Chnpter I. THEME PROWOIOOOOOOOOOOIOOOICOOOOOOIOOOOOOIOOO 1 A. Pritehett and the Roosevelt Court.................. 1 B. Schubert and the Stimulus-Response Mbde1,.......... 3 c. Toward Operational Refinement of the Model,,.,..... 11 18 Do Th. PoriOdoeeoooeoooooeoeooeeeoeoeeeoeoeeeooeeno... II. M “NH mflommGYIOOOC.COOOIOOOOOOOOCCCOOOIOIOOC 27 A. cu-u13t1ve Scale AnglySisooeeeeeeoeeoeoeoeeoeeoooeo 28 Be correlational Analy31s-oeoeoeeeeooeooeoeeoooeoeoeeo 36 0. Factor Analyliseoo00.000000000000000eoeeoeeecoeooeo 37 DO SOOiO'Pblitical AnalYSisoeeeeeeeeooooooeeoeoooeeooo uh E. Cluat.r'31°c Analysiseoceeeeeeo-oeeo000.000.00.000. h8 III. THE STONE COURT AND ITS DECISIONAL OUTPUT.............. Sh A. The Historical Context and the Cases............... 5h B. The “hnbors Of th. Stone court-000.090.0000.ooeeooe 6h Iv. m FEDINGSOOOOOOOOOOOOOOOOO0.0.0.0000...00.00.00.000. 80 A. The Ewiric‘l mungiomnty....................... 82 A01. corr.1‘t10n31 An31y31soeeooeo000.000.00.000. 82 A02. Factor Analysiaeooooeooe-eeoooooeooeeooeeeoe 88 Be Th. Substantive Interpretationaoeoooeooooe-00000.00 106 Bole Th. JudiC1al Power Dilen510neooooooooeeoeoeo 107 8.2. The Governmental Regulation Dilension....... 12h 3.3. The Administrative Oversight Dimension...... 133 B.h. The Unloeated VariableS..................... 1&2 Co Th. Socio-Political Analysiseooeooeeooeooocoo-cocoa 1h? D. Th. Cluster-Bloc Analysis.....e..eeeeeee..........e 153 7‘. CONCLUSIONSAND WTIONSIOOO.COOOI0.00.00...00...... 167 @JWIIDIX ‘0 Non—Unanilous CSSOSS 19h1-19h5 Tarnflooocooooooooo 190 mix a. Veriahle Attitude Objects and Attitude Subjects. . 206 .quifi'y " iii "T"? Q I“‘. 5...; . ;...nn "Sal “T" I I . m. ‘ :- rm.-.“ xa.e-;et :3 I .T'Yi'a --- . pned $1.2 -ar":s IIIII-IIIIOIIII'IIIIIII‘IIIIIII'IIIIIeIQ DOI'VII- "7.7? "4‘ Stella Scores ~ I I I I I I I I I I I I I I I I I I I I I I I I e I I I I I o I I I " o I I t I I e I I s I e .m‘ ‘7‘: :I. ' I‘. I tc I: ‘ “~ : an‘u “ c 1 -.."'T~ , "I'd. . ?‘ - v ‘ “'9'!“ ”I v 1 v I n. t o . t ,, - g - 9 a I O I ) 8 O I I I I - I . ee‘. n0 ‘7 . . L...‘ . . ~ iv" . “e- e c I I I I I I e o 9 e - ~ I n o e O 6‘ e I I I I I I O O I I I . ‘7 ‘ ‘- e; :g‘. ‘ta m.» g .- e e I I I I I e I ‘H I... . i I I ' ’. 3 t I I a I -‘ 0 I I I’ I O I I I I I I 3 I I I O ' C O O O I I O C I ‘ " h D I I n I I I I I I I I I I e t - 1 - ‘\ I I I e- e o - e V Q 0 I I I O I I ‘ N I A e l e I I I a o I o I l . I o I ~ I I o e I I I I I a I I I I I I I a I I o t I I I 0 l I I I I I 0 I I I I I I I r I ‘ I I I I O I I I I I C I - I 1 v o e O I I l r a I i 0 I I r I o I I a I I I- I I a I I .. I \ ‘3 I I I I I O I I I I I I o 9 a 1 I a I a I 1 ~ I : e O O O O O I I I I I O O I I v 0 ‘ ' O C I I O 0 I I 0 e I “ a I I I I e e a t I I a e I e I o e I v ’ I c ( I I c ’ ’ I I a ' e A “ a I e e r 1 g ' I I I I I I I I I I 0 e I I c I * u I I ’ 0 I a I I I I I I e I I I I ' I I I 1‘ I I .- I I ‘ Q n e I e I I I A I I C I t I I a I I I I ‘ I a I o I a fi 1 1 . e . e I v c e I t r. I n e O I I O O O O I ' O O O O I O 4 I‘ O 0‘ n I I I I I I I I I I I I e e I ‘ e a I o I I I e e - a C 0 ‘ 5 O I 8 1 e u I 9 ~ 0 e I I e I I ~ I I 3 I I I - ~ e D I O O O I I O I I O O O I O O O 0 \v ' a I ' e I 1 ‘I . e I . I I - c- O a I O I Q o n I I 1 .3 . . O ' 0 I ‘ D e ‘ V ‘ 'I " 7 h ‘ ‘ 0 ' V " t ’ " in wt“ M.OOOOOIOCOOOOOICOOIIIIOIOOIOOII00.... ' ‘D§‘Ilzfls.m-M SpcuiutiouooooIIIIIIIIIIIIIIIIIII-II ('9 figs.“ R‘nk. of Indiudml Justice'IIIIOOIIIOIIOII. 212 27k 276 543 r"? -.n I ‘h. ....;.":.,...._-,_. A“ r“ 7 .I - .— .. ‘ ;,- 3’ -J’ pa 1 f I . : , s‘ Jaw-m .- Fr mo . ‘l~ “ ‘ ,. ’3; . ”a I V.‘ a? 0""... .‘.,w.“ aaaa ."..... _____ . ’ . . ' ‘ O I 59'..."- 11!!" " “A ... .4303: 1‘: )~ -1 2 in 'm- 3 v- 2 ".1 .e.scur.el: +1 31.". FQTEOYYRIO 0 0 2:10" 1‘ ~ a‘ w - q‘ . J»£emqu a h l) ,‘ 0'0 . 1 o 1 r)- J ( 4‘ .eg‘ulati'ir \ .. t‘ve Ove‘S‘ a" “native Ever-‘1 ‘ satin her“ ' a; .‘u “a: ,.....:tclzy Ce‘l "‘ 2‘ ,mtingen ‘ hi. c. LIST OF TABLES ‘1‘ Anetee of Dieoent: l930-19h5 Terms.................................. Suprole Court Personnel: 1921-1970................................. Stone Court Personnel....u......................................... stone Court Background Characteristics: Summary.................... Stone Court Background Characteristics: Cross-Tabulations.......... Kolflell.§gg 60-Veriab1e Inter-Correlation Matrix................... Varies: Four-Factor Solution Landings.............................. if Judicial Power Dimension Scale Ranks............................... Judicial Power Dimension Inter-Correlation matrix.................. .J; Judioiel Pouor Dimension Within-Dimension Mean Inter-Ccrrelatione.. . ‘5 Mm“ Regulation DilenBion seal. Ranks.oeeeeeeoeoooeeooeeeee O ’ ‘ : )7ggpornlental Regulation Dimension Inter—Correlation M2trix......... 'I I ) ‘ .i‘wnnfi" mr'izht Dimnsion Seal. M'OOOIOOO....OOIOOOOOOO , Contingency Coefficients, and t-test results on the if enent Frequencies: 19h1-19h5 Torus (all cases)........... nt Ratios: 19hl-19h5 Torus (ell cam)...............'. ihovornlentol Regulation Dimension Within-Dimension Inter-Correlations 22 65 75 76-7 83-6 97 99 101 102 103 10h Plny variable.oeeeoeeeeeeeeeeeooooo 151 155 156 157 158 0.. legulntion Dimension Inter-Agreement Frequencieo . . . . . . 159 . mtion Dimmion Ilkr-Agnoflnt Ratiose o e o e e e o o e e 160 3m Haw- "N'" .2 M Mr _.~ J" ' I‘LM'C’B Four \[ "4M1 x ‘g \ “_ '. “Manchu a i x" L“ 1" ‘O; go , ‘ “ c ( -~LU~.vu lepreseav t.‘ .22; Four 21-: nsion unfair: Cur-s: 3:9. LIST OF FIGURES a'i‘lmflmt10neesoeoeeooeoooooeeeeeooeeeeeeeeeeeeeoeee 15 5M: Daemon Individunl Behsvior Charecteriutiono...“ 121 i‘JPmr.ld Mtiom 30h.” 00.....OOOIOOCOOOOOOOOODOOOCO 1.22 1"... Q 'CQIQ 5 3 O O “"2".“ --4‘ . i'u'...-.'.1. .; ~ .. . . if". evyoez.‘ A A, Ooh oe.-.eve..-n U‘ “" '5’ 3'3 researcr 5-. . _’ _~:.,_. - ' 9’ \ “-N "' a. “a v 33" DIV '.I ‘e “in .. p G S \p .. ~., ‘ D e. - . £‘h '. ;': ‘;-“|'. 0.“. ~...‘ . V. l \.. n. "e '\ u ‘0... h a‘. “- to, .c.' F. a“1.. .‘ ‘ - a J a" , ~|C fin \ "'“d‘ff‘ ':'-~ k . “‘" Jan? . . ‘ V ‘ he- l'u “.. EV:.-!‘ .'.v g. Scua.q . ‘Pr ; ~ ‘.“U Ah‘O. “'4“ an; _ " "HO-31 a .‘0 . x77“.._ ., _‘( "Maze 3 1- ‘ 0.... e 18? ‘Qt ~~N;ne ._ “. ..D:q:‘flt‘ ea: v ‘Q \ ‘ ‘ . .. \.. I- O u’V a1" .‘ "' heir“ L, O . ~w 5‘ 5 ..’ «'1'? N ‘ b a. “— . '1' r l C. (D F “l . N~ufl .‘ 'h ‘1’“ U..' a ‘ . U. ‘ . rC~__‘ ‘ ‘V ‘ ~29 t. \_._4_‘ \\\‘ A “‘ Jag“. 51,‘ , t0 3 w. - 3w» ~|4 “U CHAPTER ONE - THE RESEARCH PROBLEM u- ~; ‘1 ‘ .‘lti.’ Controversial and comprehensive changes have taken place in the ‘ " March orientation of students of public law over the last fifteen .‘J 7" ‘I" fibers. mom research spans this transition and is a product of this C ‘r‘florientation. The acknoiiledged impetus for much of this refocused 't‘fisearch is the work of C. Herman Pritchett. His original thinking . '1} has been subsequently broadened, extended and formalized by numerous 1 scholars, particularly Glendon Schubert. In turn, the contributions 7) of Schubert have been modified and refined both theoretically and fpthodologically. This initial chapter will draw from the work of ‘ Hitchett and Schubert as well as other contemporary judicial analysts . and synthesize the relevant concepts into an overview description of “thoom'rent research effort. ,1- 92:2; -: f 'Pritchett and the Roosevelt Court . “in 0‘ u _ 5%“ _.-e_. Herman Pritchett undertook a relatively systematic analysis of of a century ago. The project was notivated by Pritchett's 3"~"=°.°.‘s '4ch 31‘: H z 9,. ”L..- L.5:0 .nv a 5 ‘1'0‘ nnrnrhfiq or ‘~Qfi~u Hui. .: uon.~g c U‘-- s C n... "UI I”- . r, " ”V'MI. anI be. " Iso‘: :- ~ :"O~ zen-é.- It} \_ o ‘ ~ 0 - :".:‘l‘:l‘? :omirh re "D-na.. -. ‘ ‘tiv: .‘.:_‘~ '3 Q‘. "r.-01..: ‘ I '90 ~-oe ~' ‘ p at .- a ~60-0- a \. ..o‘.3 C o! '~a.‘ .. u... ”an, ..'. ‘ ..n A‘ ‘ on. E. “‘ ‘F.P.”‘ v y ... - _'~ w we. .- Hb .u ’ u- u ‘ v .. .‘_ ‘V .':e :.:--~ ~. 1E5 a'4./fi‘ ‘ “A. v. ".I. e k- "N' ‘ou be. 1 . a v o t n I. “-~:’ ‘t adv i‘.arac D~V 'et' . - q. \o.."‘ .‘H‘ “"‘1L%A“SQ V ‘ — ‘5“ °' £1~3 23-; 3 u a. 1“,. 4". ‘ v n‘. - ‘ ..a...;l‘ . ‘V ‘as ‘ ‘r; In. ‘ (hon, ~';~T:‘I‘ ‘ "B U' I‘ b a 3 am ’k V”, ‘c‘ . " :‘~ I“: ‘ ‘ “:1“‘ .3 Q a ~ -. '~'t:-; . Q ‘ . w 5-5784.‘ “va ‘h r . Hg.‘ \‘g. A‘ '1'”. ‘ca? 3nd «4‘ “gs a a, ‘ v‘ is. '5‘? 5‘0 .‘vvC‘ ‘.‘ Arritohett's work stimulated subsequent efforts in several diverse ‘ ,1 h areas. The research employing an approach focusing upon the ' 'gpam psychology of Judicial attitudes is of central significance at this Juneture. From a theoretical standpoint, Pritchett's Roosevelt F‘fi‘fi is neither well developed nor precisely defined. Pritchett was ' t"getparticularly concerned with elaborate research design, the need 3‘; for subsequent replication, or the need for concise and precise opera- .drhfionalisation of the concepts with which he was dealing. He confined . ;himse1f, rather, to an examination of the member interagreements as ‘ Dasured by manifest voting alignments or blocs. ‘ 4 The foremost contribution of the Roosevelt Court rests with the zisseertion that something of a political ideology-psychological char- iaeter determines and/or motivates the responses made by the members 0'2 the Supreu Court to the issues contained in the cases before the Govt Pritchett characterized these motivating influences in rather ' rigs n Mstic liberal-conservative terms, and he described the manifest m alignments and differential individual responses with this ad very non-random in character. With respect to these blocs . .- . '4 n‘ ca: L15 .._:2 . he: to“! or; IOVI ‘01— via. n5e~0- Op-o e, eerie: 5.3.1. ,. ‘1094. ..- .- u.~ ....' 1.133 if». ‘ a... a ‘ "aee: ~ ' “31-.” N K” ‘ .I a. u l ‘ .f“. :33». ‘5 a“. R p “We r 93‘ ' v .3:- ‘V‘h‘.’ N. ‘5» . 'kfis- LI." “U: \“u‘ one wing find himself dissenting in company with a jus- tice from the other wing. This fact would seem to in- dicate that there were indeed 'underlying differences of gospel' in terms of which decisions in practically all of these controversial matters were given....Loca- ting the justices along a single attitude scale in terms of relative liberalism or conservatism would ade- quately account for the judicial disagreements manifested during that period. It is this notion which makes the Roosevelt Court the genesis (implicitly or explicitly) of most modern judicial behavior research. It clearly serves as the point of departure for Glendon Schubert. B. Schubert and the Stimulus-Response Model The most appropriate place to initiate a discussion of the work of Glendon Schubert is with one of his later volumes, The Judicial Mind.6 Schubert suggested in his introductory chapter that two basic objectives guided his research effort. The first was the explanation of a theoreti- cal model focusing upon the political ideologies and attitudes of Supreme Court justices. Schubert pursued this objective by concentra- ting on the decisional propensities of the members of that judicial body. Second, Schubert sought to examine the patterns in the Court's polioybmaking endeavors over an extended period of time.7 The latter objective relates most directly to Pritchett‘s work with the Roosevelt Court.‘ The primary significance of Glendon Schubert's research cannot be considered in exclusively theoretical or methodological terms, however, Its significance rests more with the total orientation and direction of v-._ l~ths research. Schubert clearly departed from the perspective of the in}... . P ' ‘ O I 'n a o n 7' ' ~ ‘ fan-0' W. i v-: k A - A 0-0:: a, 0.3 4"?“ ‘9 .. 4—. '- On- .b¢--‘n _ e. ' Q .1; .1)".- “-~: .. .- ".-oo‘:b .0:‘-.-' .0 . ’ . rec... -'. M. r , . ~ 3' 3. 33. a of 1'; V ‘i.' ‘ :Vor;;’ 1". -9 e;- 0‘: ’ .§|0-\-: 1.! a. a :;::I 3; Q; ‘ wt“; . “q '\I:‘ : U ‘- "‘e.. a I s' -0 .. ‘ -. \-. y‘al: ‘ ‘ . :v - S. o. b.1l4 h - " Stu. \‘n! ~“-“ ‘ ~§ w \ V ‘ ‘N‘. "\r‘H v . will” u " v. ' ”“4. . 3“ ' ‘u Primarily'to the manifest voting behavior and inferred political atti- tudes of the justices."8 The crux of Schubert's perspective can be summarised thusly, "My view of the decisions is that these are the products of sets of judicial attitudes that have been activated by particular stimuli; and from this perspective, the attitudes of the Justices are of a much more fundamental importance than the decisions."9 This is a much more comprehensive statement than that suggested by Pritchett. The basic operating assumptions underlying Schubert's conceptual position are related directly to the writings of Harold Lasswell, in particular, Power and Personality.10 Lasswell's notion of the "politi- cal type" is of central importance. Schubert assimilated the Supreme Court justice within the "political roles that will permit him to enjoy the power he craves."11 He is the person who "displaces his private motives on public objects, for which he then provides a rationalization in terms of the public interest."12 Moving from Lasswell's "political type," Schubert concentrated on the matter of the rationality of human thinking and choice-making. He felt he could justify making the rationality assumption because "the roles of Supreme Court justices are defined in such a way as to give laximal emphasis to the importance of rational factors."13 These in- fluences include such things as the character of legal training (pro- fessional socialization), the traditions of the Court from an institu- tional standpoint, and the other general influences imposed from within V‘tho context of the highly ordered legal tradition, e.g., the tradition » Egg! dethronce to established order.1h Schubert suggested that this no- . Airy of rationality also offered the ”advantage of providing a basis ‘,‘. "'1 “9:" ‘.. D n—eIO' l '0 .'>.I I : ‘: ”I: if! €533.39 ....~.-.- r.-,. “- .. e-‘zaa a: .50.}. y. :1 ’ . '~""';""° 'n .4 ~v""“"-'-‘i an .E.a A ~I-a . ' ' Q 56 "“‘I a "2' ' as ‘ '.~ ' . .‘zatza.’ Schubert “4::- . r um. i! :uLBI‘BRCE total A.. 'N- P h e . . 0“. ~ _: 'h‘fi .9.-ka ‘L‘g 72...... .| ‘ . "- o . . (have: C. ““E :01 -... . ' ““- berm.— erass f*-. ; . ‘- ‘P’l- . .. net-ragls H o .1 ml .Pnp a ~— Ag _ ' H" hen-S's» ' .54“ N," ‘ -\.“ in: 0.: _" fi-«Cfl be '5 ”711mg:- of \‘Ed c“7-30 13k 1. tzn "m‘: :\’ ..5_‘ 3% hinge: 3:. .1"! ‘ ’1 . n ‘g.elr p‘ib' "3 a t: 52H .h‘ “ ‘ . a“ “ca - >1 i '6‘ ‘2 3-“; ufKCQted t- \ . h‘;‘:-‘:-‘,a‘ \ if“ £3156“ % 23‘"qu p0. \‘ n 5: ENG “56:1, . possible for a researcher attempting to use the projective approach."15 It was the projective approach from which Schubert wished to detach himself in favor of an approach that was "associated with the use of psychometrics in relations to stimilus-response, cognitive and-learn- ing theory."16 The final element derived from Lasswell was the notion of "ration- climation." Schubert considered here such aspects of the judicial process as conference exchanges by the justices, the drafting of the written opinions which accompany the Court's decisions, etc. , as mani— festations of this rationalization phenomenon. He noted, however, that opinion behavior as such should not be the central focus of analysis. Opinion de-emphasis was justified by the assumption that there is a "very close correspondence between the private beliefs and the public voting and opinion behavior of the Supreme Court justices...."17 The reminder of Schubert's introductory chapter extends the focus of his decision making model. He asserted that the question to which he was addressing himself is, "...when men play political roles, to what extent are their public acts influenced by their personal beliefs?"18 In this context, a methodological question is raised, "how can a social scientist study the relationship between political belief and political action, in such a way as to maximise the probability that his findings can be replicated by others."19 This question of rigorous methodology and predictive theory, replication, and other associated matters were concerns which dominated Schubert's workozo Schubert then moved to the related question of trying to "minimise ’ W prObability that he (the researcher) was projecting his own predi- o;,:mfll onto the political actors whose behavior he seeks to under- ‘ I '21 Schubert felt that this and the previous question "presule I. ‘ ‘ e um- .-—--, - ¢ .¢ .- 150 h.:'vu . .~: 0 ~ ~ v . I 3 ,9 .,..4‘ 12.. “in“; is 1 ..”‘ " s- : u u “:0 3-.5023 ml: 23:31. t We. ”‘01. M 5‘ 1'2‘: ‘II'J' NO. ..“‘..! :P Y: “.1“ «0...; £7 .- = . a. ‘ ““T.: “"‘I «J ¢ ‘ \‘h " e.” A '. 75 “a. H a socio-psychological approach to political behavior, in which the pur- pose of inquiry is to explore motivational elements of choice in poli- tical decision making."22 The model directly addressed itself to this question. Schubert chose the Supreme Court as a research object because it is a small and stable group as well as a group to which access to data is readily achieved through the U.S. Repgrt . Schubert cited three primary sources for the theoretical framework of his model. The first was the work of Louis L. Thurstone in the field of factor psychology.23 Thurstone assumed that if the behavior of col- lections of individuals (like a judicial body) were correlated, the correlations must "reflect the extent to which the members of the group were individually correlated with the sets of the dimensions relevant to their behavior."2’4 This approach allows the researcher to sub-divide a particular correlation matrix into component parts or factors. According to Thurstone, such factors were "bi-polar, so that a person might be correlated in either of two directions with a dimension...."25 Considered spatially, configurations of points, each representing the individuals within the particular group, could be located in a fhctor space and these points "would remain invariant under any rota- tion of the factor reference axes."26 The configuration of points might alternately be conceived of as “a set of vectors which are im- hedded in the space, and whose interrelationships may be measured by an infinite number of frames of reference.'27 Schubert was thinking in issentially three-dimensional terms with orthogonal reference axes - axes "1eeatod at ninety-degree angles to one another. . ‘“sg.; The second source of influence on the Schubert formulation came ‘ ....A (I ‘Cu-‘N‘ ‘ 6 "‘C.‘ - ‘ "‘3:.-: Short... . .. J. 4 U I A'FA‘ '“ r... ..e'..tc”rese v/ a ‘ '7‘ I Q. ‘02... 2.30,, a: t.ge s " I"; 'u "" Ana-“3r CNN": V v- ‘-Fvc' N .L “ ve . ...e person's : 1133232 115:1"; :5 tom 2:35:11! "Fresente ' I. .. w “. 45-055.... {.23 V: an” a.- E“Firm in . decis “an; e. . "‘ '..‘ .1 v. ._,,_ ela‘ . gure “~‘Jr‘ r”. I In My \L "f “a u . in. Hie lndihd I“. . \th ‘ ' We «"Fczrt is T's. ‘\:i MN}. blailcal a ‘n‘ \ JG - h. ‘3! 3‘41, , k“ 13 . 5;.- 1’81 “Win pulled the stimulus-response notion which is fundamental to his model. The stimulus-response concept revolves around two basic components, the "ideal-point," and the "stimulus-point." An individual's “ideal-point" is that "particular combination of the relevant dimensions which best approximates the person's own syndrome of attitudes."28 The heart of Coombsian theory is that basic components of the human personality can be conceptually represented by a particular point in a proposed factor space - a space of any dimensionality. In addition, the questions to which a person in a decision-making position reacts may be considered as stimuli. More important, these stimuli may be measured along the same dimensional lines as the individual attitudes; these stimuli may also be represented by points in the postulated factor space.29 Coombs hypothesized that "when an individual responds to a stimulus, his mental process may be conceptualized as that of making a comparison between his ideal-point (i-point) and the stimulus-point (j-point) in the factor space.“3o Under this hypothesized condition, Coombs suggests that two kinds of i-point and j-point relationships can exist. The first is where the individual supports or responds positively to all stimuli whose j-point is perceived by the individual as locating I'w:l.thin a critical distance from his own i—point (the position with which be identified himself - where he perceives himself to be located in fictor space)."31 The other is where the individual rejects all stimuli which is perceived as being located elsewhere in the space or beyond his own i-point.32 Schubert added the measurement technique of cumulative scale analysis to the stimulus-response notion of Coombs and the factor 'inlesmremont theory of Louis Thurstone. In Coombsian terminology, a aifiihietiva scale may be classified as a one-dimensional space or a . . . ‘........-,.r ’5‘" 0. Jim k'. “0st d ‘4... a‘ .' ,. 1.1m? 5314.3 .5 \- r-‘: ’,‘e.“.‘ g 3 ‘ ,"‘ " -~0Oi. c- a. ‘rivm m "V .......é. .. 39355 C "'31:: Just: sxzx§4re “a: he is : 'r55 1333:: ‘59“... c._‘ “‘5' 'u.‘ -_ l . Ho.e e35 'm.~ “SHE-.5. a. n: ‘1 "s' . w ~3 ”'5 3’33“- {A “it. . v -'-=:+. . ‘83293 . "tiie ‘ :320. f 'hI cor r? r .. en \:“" line on which both the i-point and the 3-point are contained. While the cumulative scale is one-dimensional by itself, the scale can become a part of a multidimensional construct if one considers the scale as an axis located in space. The exact spatial location of these scales is determined by means of the association of these scales to the underlying reference axes in the space.33 It is from these three basic sources that Schubert generates his psychometric model. Schubert begins the description of the assembled model on the assumption that, ...each Justice either come to the Court with, or soon acquires as the result of the kind of task with which he is charged, relatively well-structured atti- tudes toward the recurrent major issues of pu lic policy that confront the Court for decision.3 Schubert felt that an analysis of the content of these decisions will produce a classification of the issues common to them. From these issues one can identify the relevant dimensions of attitudes which respond to these issues. The cases comprising the Court's docket are conceptualized as stimuli. The attitudes of the individual members of the Court are represented as "a unique point in space varying from one to three dimensions."35 These are the i-points. The contents of the case, the flats and the issues produced from these facts, specified for each Jus- tics which attitude or basic psychological dimension (one or more) is relevant for the particular case. In short, the decisional response of each member of the Court will depend upon whether the stimulus of the ' ease is short or beyond the i-point of each Justice. ::.5' ‘-"Cousidering the Court collectively, the Court's decision will be -‘h_‘£}a¥£hheticn of how many i-points are dominated by (or dominate) the 1‘ ‘59-- _ 7’ :fllfiyflise point of the particular case.36 The Justices are divided by as .2:cé.;"‘ A, 0“ oguov‘n V. ban the :11; one g: . I ."I "~.lf‘g. ' g. via-am. ‘I ’I ~ “who: c' l 4 “-0; 'i \ ”“355. ’9 a..- M f‘. ‘5 6' *1 -&e «a. VI! $4113: the position of the 3-point in the one-dimensional situation. There will be only one group if all i-points exceed or are exceeded by the stimulus-point. The multi-dimensional situation will have the attitu- dinal variable in the space as an axis, and the ideal and stimulus- points will be at right angles to the axis. The Justice will find his particular referent axis on the basis of the perception of the indivi- dual Justice as to the issue. This axis will serve as the fundamental criterion on which he makes his decisional choice. The dominance rela- tionship again determines behavior.37 Schubert's application of the factor analytic techniques involved consideration of matrices of phi correlations among each possible pair of Justices. The purpose was to measure "the extent to which each ele- ment, of whatever has been associated in the correlation matrix, is related to the reference dimensions into which the original correlation matrix has been partitioned."38 The elements in The Judicial Mind were, of course, the Justices, and the factor loadings expressed the degree of association of each Justice to the structural dimensions of the correla- tion matrix. Schubert undertook his scale analysis by employing two basic vari- ables, political liberalism and economic liberalism, drawing upon the liberal-conservative bases first used in this context by Pritchett. He constructed term-by-term scales on each of these two variables reasserting the primacy of the two attitudinal bases for the decisional behavior (while achieving at least the minimum in terms of the various scale eval- uative criteria). Schubert acknowledged other relevant attitudes such as attitudes toward governmental taxing authority, federalism, Judicial Egggytxiem and Judicial centralisation, but he found that none of these ‘ L—w ”a. ..‘...a‘ Om- e‘ u...- O Una. m c.’ 15:52 cw O s V‘s-Id ‘ ‘ ' I as: - g C V it..- o, . v e in. ' - . a 1‘ . "‘“n . .. :~:.:"\B F Vb. :21... . Kl“: “ -m 1 . law‘s. 4 ”a 1 'Q‘ . ~.....u ccp< .fi 4 d ‘¢5ed ‘ “'16: is n 153:» w. ' E‘s. e .P "u. ‘he; mV"Oa 54 v U‘ :3: N V‘: as O 1 ‘Q 1 \ w ‘. J r ‘. tale 1 3". K, ”$0 Q ea“ ‘ 3‘8 5 ‘ I‘-‘ as 3.. . iw “‘;‘ as. ' '|‘ u n. '1'. v 10 The critical thrust of Schubert's work theoretically (as well as the work of those operating from a comparable research orientation) is that Judicial decision making behavior, if not decision making behavior taken generally, can be explained in terms of several basic psychological factors - in Schubert's case, the two factors of political and economic liberalism. Schubert did not go beyond a three-dimensional factor space conceptually - a throwback to Thurstone's initial orthogonal factor analysis notions. The criticism of this particular research approach, a criticism coming from behavioral as well as traditional researchers, is that the design of Schubert (and those who followed) tends to grossly oversimplify the descriptions of the Court, its decision making processes, and the explanations of its behavior.39 Criticisms, from whatever source, focus upon two related aspects. First, it is asserted that Schubert's approach tends to underestimate the complexity or dimensionality of the structure of the Court's behav— ioral patterns. Secondly, the interpretations of the dimensions were assailed as similarly oversimplified.h° Spaeth and Peterson discuss these distortions at some length and suggest some of the research implications.h1 The problem of underesti— mation seems to be the product of wholesale issue merging that occurs in the construction of the massive scales characteristic of much early psoalogram efforts. The "C" or civil liberties scale and "E“ economic liberalism scale are illustrative. As Spaeth and Peterson point out, such a merging of issues and issue categories introduces two kinds of bias. First, the ”practice of minimizing nonscale responses by the re- ‘hflfiiring of cases results in an ordering that makes possibly diverse ’ eases seem as similar as possible.“2 It is in this context that Spaeth v'3r- 1 :.o u‘vl a :n-ao‘. ep‘ .yCvmh 5.": ‘ .- ' vc Q: ‘P.' ' ' .u'. ‘P a p -£...z:- . .; ..-‘ . e- s . " Lea...s'.' ’ 3‘." o a . "-5 .3 Jun 0. 0.- ”E -." a q ”‘0‘ - ‘U‘.:.' “3"- r o: a. V's“; _ “U€~ . .5 “G ‘t : a, a 0:... .. “I: . b‘fia. :F'e‘ 2‘ Q‘- , \‘m ;: ta - -.'""- : ft; \ “b e .‘ U ."e-Sfl \ {‘14. \au‘.‘ 3c v,- ‘- I K 3’51? ha \"‘:.:‘ ‘- b A “Q R V ”I. Q A. '4“‘ d the :e-. «I i. - Q . i 'i‘fi O S'rl‘ ‘ \.“ ‘ . “a. It... -"‘? criteria be employed when examining Judicial decisions.h3 Spaeth and Peterson pursue as well the second type of bias produced through oversimplification, ...categories, such as race, or religion may be repre- sented by so few cases in a single term that the highly structured response pattern on the numerically predom- inant cases may easily compensate for non-scale respon- ses introduced by a minority of mi lassified cases belonging to a distinct dimension. The underestimation that occurs, of course, distorts interpretation and tends to lead to oversimplified conclusions about the structure of the decisional patterns generally. C. Toward Operational Refinement of the Model Schubert was looking at the question of dimensionality by using scale analysis. He assumed from the outset the existence of more than a single dimension, but expected that almost everything could be ex- plained in terms of the political and economic liberalism variables. Schubert represented each of these variables by means of gigantic uni- dimsnsional scumulative scales. Schubert's massive scales met the unidimensionality criteria estab- lished by the developers of cumulative scaling techniques. It is here that the oversimplification issue becomes central. One of the ways to counteract the oversimplification danger is to work from the most spe- cific toward the more general. Simply, this involves constructing as many separate and highly refined categories (scales) as possible and _ determine empirically the character of the decisional behavior. Rather "3thau,categorically defining the inverse of items (as Schubert did through Lii;a construction of the political and economic liberalism scales), the tvj? fi‘a i*§1gpheais is directed toward maximum scale refinement. This does not o‘vw a. :3 p-‘r‘fi 3...; e5.* 7‘ o-‘nr mg... no :0“: .=.. 'e' .‘ g-.. ...LS -54. .. -.~-.. .A n --. nix. ,. . . .- " .a . . {Swan - . a w """."‘J ' ' "'e- .' be" . he I“..- -S a..§ ‘23? Si! 212, JEW‘I'QQ .-_ 0" .u 3 t)" ‘-e .' 6 w" re.‘ “‘ iuc . Rm. "" 'c C O. ! rt. Va...l'£-‘ N a“ ~,. 3°‘ea‘ ‘ . i.v€‘ ‘3?! ‘1- u. . .. ‘- Was‘e .:.'. i v,.( ant.“ . out...“ 1 1'... “g:: . .~ "c J18 : :.‘ . 4,:‘: 3 '3.‘ .' “.8, ?:\ a..‘ . . D '1. JQ‘AVL'. \I (3: q ' Lie-.w r's. 35 ._“_ ‘ {“: CA..- v ‘3' >- V \- ‘. ‘v‘.e “A H 'vtsrac .‘V.“ 12 preclude merging the numerous refined scales into several larger scales, but such mergers occur only when empirically justified. This departure from Schubert's design is intended to allow the re- searcher to examine the structure of the Court's decisional behavior much more objectively. The approach does not inhibit the finding of a struc- ture which is highly simplistic - a structure with minimal dimensionality. At the same time, it does allow a much more complex structure to reveal itself if it, in fact, exists. The latter was a condition prohibited by the Schubert methodology. The departure from Schubert compels one to go beyond psychometrics and general measurement considerations at the theoretical level. It requires that one also deal conceptually with such constructs as attitudes and cognitive theory encompass. Certain aspects of a conceptual consideration of attitude will be summarized below although the discussion will be limited to that which is directly related to the current research. Harold J. Spaeth has attempted to operationalize the constructs of attitude, value and ideology for the purpose of examining Judicial de- cisional behavior.’~‘S Most of the remaining discussed will be based upon these attempts. Traditionally, attitude response has been seen to have three basic components - cognitive, affective and behavioral. The be- havioral component is that upon which this research focuses as it is the overt behavior of the members of the Court from which the researcher infers the basic attitudinal bases of the decisional behavior of the Gonrt's members. The focus on the behavioral component requires a conceptual defin- } 3.115%“ of attitude which also focuses upon this component for the purpose t x a .. the ’(“Al W." .M s. g 2.: “I“ , ‘5‘. I YE K'R‘LQ.‘ ' - O ‘ “W 3. ~~ \- ‘»‘- ~ hi'a b " e " 3 \ {‘7" ‘33: A! . e _‘ t: ’1'! ‘én‘e; " °’ F \ éé‘u I \~ 3 ~ 59: useful with the kind of data being used in the current research. Rokeach summarises his definition, in attitude is a l) relatively enduring 2) organization of interrelated beliefs which describe, evaluate, and advocate action with respect to an object or situation, 3) each with belief having cognitive, affective, and be- havioral components. h) Each one of these beliefs is a predisposition which, when suitably activated, results in some preferential response toward the attitude object or situation, or towards others who take a position with respect to the attitude object or situation, 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 atti- tude, a minimum condition for social behavior is the activation of at least two interacting attitudes, one concerning thehgttitude object and the other concerning the situation. The notion that attitudes are relatively enduring is generally accepted as noted by Shaw and Wright among others.h7 The research done upon judicial bodies reflect this same phenomenon. Schubert, for ex- ample, found very little evidence to suggest that any shifts in the attitudes of Supreme Court justices changed over time.’48 This has also been reflected by the fact that numerous highly refined Guttman scales have been constructed across terms which empirically demonstrates the soundness of this proposition. Consideration along this line will be given to the measurements of the relative positions of Justices Stone and Roberts. Prior to l9hl, Stone was acknowledged as a member of the liberal wing or bloc of the Hughes Court while Roberts located among the moderates or within the mediate bloc. Their scale positions relative to the Court's general issue responses post-l9hl will be examined to deter- mine if the personnel changes brought about by Roosevelt's appointments created movements by Stone and Roberts. It is also a consensus view that attitudes are not the basic ele- hut within the personality with respect to the organisation or . e ,‘...am:rua a" 0 ‘1‘}..sveuuou v. l ‘ . .., J‘.‘ :‘..'.‘L.:...e e. 333?: 75.2 31': gm £5 a»... "b bee-... ' "t ' ' 9 ‘ ‘po .‘H ..f.. d. on .e. . v . 1'9'» e-' I . . wuqeeQV-O. erg. I 3.33. 3.. "' ' \- e a O Xue‘ .v, . g . Ii :‘l":es :‘z'. a '3 3’ .-. _ e UH.S c 15'. \.: 1‘ e"'. " igfi be a . Is... evSszal ."p ‘0'. .‘W “1.3: t ‘3 Val.“ '} 1. ‘5‘. 3‘5“ ‘ ' flat. Vlel ‘ .0. e ‘ ‘ “31"? e I‘ ‘3‘ .. ,8 v." ‘e rag. Qu‘er 1 .5... s“. K ‘ "1‘: a ‘1' “-ACL \'.:= V 1h relationship of the constructs. The element considered to be the basic or irreducible element is the value.h9 The essence of the distinction between value and attitude in the sense they are employed in this re- search is their level of generality. An attitude represents "the sum total of interrelated beliefs about an object or a situation."50 The hierarchical organization of these elements will be briefly summarized below. Beliefs and attitudes are considered structurally analogous on the basis of the Rokeach formulation.51 A hierachical element is then added. Beliefs, as noted, are the basic element. Attitudes, or systems of interrelated beliefs, are at the next level. Values are conceptu- alized as occupying a third level and also seen as being structurally analogous to beliefs and attitudes. Values are conceived to be inter- related belief systems which include attitudes. Ideologies, finally, are at the highest level of generality. Ideologies are composed of interrelated belief systems including attitudes and values. Figure 1 provides a representation of structural hierarchy of the various com- ponents of this conceptualization.52 All four levels have cognitive, affective, and behavioral components as portrayed.53 Similarly, social psychological theory suggests that beliefs are functional to attitudes, attitudes to values, and so on. A more thorough discussion of the notion of function and functional connections can be found in any of a number of excellent treatments.5h Exclusive focus will be upon the actual votes cast by members of ‘fihe Court rather than the written opinions for the purposes of this _reemnueh. Particular emphasis will be given the relationship between - . :2; 1192;; ~ - “453 ~ ~ ~ ~ ‘ 337;... -‘ "3‘31 ¢ ' h \é :1‘ “Om "e~ L. ‘10 ’3 na’ “:3: “1807.. lel‘cl ‘V ' , I f: T'" 1. FIGURE 1 Simplified Representation of the Psychological Determinants of Decision Making* ideologies values attitude systems attitudes beliefs "I Reproduced from Harold J. Spaeth, "The Operationalization of Attitude, ~ ‘Viflhn and Ideology," Public Health Service Research Grant Project, ' f; ',;;£;15365-01, from the National Institute of Mental Health, 1968, p. h. erased-1 ‘ ." .I. at“ 5.30.13... . l u. - :‘us a: ,.‘... .‘, -. Once on oA-i.e.¢,.‘ v ...a . -£.:.' O 1.. a.‘ . \Ie - e‘ B"- H‘M a“ t. u. ‘ .. “‘Eh HQ“. "“‘1 Ce. .. . , 0 . .. g 0‘ “:13 I 9‘! ‘5'. I. 'V- lsf‘ ‘M“‘g \ ‘ ~ ‘55" ,r. ‘ *4 .1, .. arte 'fi. . “4” ‘ 'm u: c“ . Q‘E‘r 3. 5~ Q4. "Lfii \ 16 of beliefs, more than a single tendency to respond is required for acti- vation. The necessity, therefore, for a definite action tendency com- ponent is requisite for this research. This closely follows the formu- lation of Rokeach. Finally, Rokeach's conception of attitude involves two foci which interact - the attitude toward object and the attitude toward situation. Rokeach sees behavior as the product (function) of the interaction of these foci (A0 and AS).55 The primary A0 in dealing with the Supreme Court is the legal entity involved in the legal process. This legal entity can vary greatly. It may be an individual such as a criminal defendant, a civil litigant, a taxpayer, a property owner, a racial or ethnic group, a business, a labor union, or an agency of the government. The primary AS, which is usually more specific in character than the A0, represents a statement of maximum refinement reflection the semantic, substantive content of the cases which make up the scale. Spaeth and Parker have sought to determine the relative importance of AS vie-advis in this interaction using data comparable to that being used in the current research.56 They found that behavior is, indeed, a function of the AOqAS interaction with A0 and AS having differential effbcts or influences on the determination of behavior. It was the con- clusion of Spaeth and Parker that the AS is more predictive than the A0. L.complete listing of the primary attitude toward objects and at- ‘titude toward situations for each scale or case category is contained in Appendix B. The portion of Rokeaoh's definition of attitude which deals i~ viith object and situation provides the operational basis for a highly I'S. ' £?1fia§¢ined classification of the cases, and it allows the empirical (as ', a (.5. ' ' T f._ 'bggpeeed to categorical) definition of the basic or underlying structure ‘ ’41, ‘. .09: A ...a- .5 a. I‘- VJ .3 0‘. low it I u an... ..- . :‘-:D- '1'. ‘ H 5.0- "' of l7 to make these empirical determinations are discussed at length in Chap- ter Two. To the degree to which the classifications of cases into Guttman scales are valid measures, "...we are able to tap the primary psychologi- cal determinants of Supreme Court decision making."57 Attitude will, thus, be operationally defined as "a set of cumulatively scalable items as finely drawn as the parameters of the data permit."58 This will be done despite the fact that there are a great variety of attitude objects and attitude situations (60 pairs) which makes the scales more closely akin to attitude systems since within each can be hypothetically found an independent psychological determinant of behavior. The operationalization of value follows from attitude. A value is viewed as a set of interrelated attitudes. The values are measured by means of the various measures of association utilised. Assuming each scale represents an attitude, a high correlation between the ranks of scale scores of two or more scales will represent a value - an attitude system. Values, then, are seen as dependent upon the attitude which is similarly dependent upon beliefs. In salary, the theoretical and conceptual model differs in part from the operational model. The conceptual base for the current effort is the premise that a psychological structure determines behavioral re- sponse and that this structure is composed of beliefs, attitudes, values and ideologies, in that order of generality. Moreover, each one of these component parts may vary substantially in terms of specificity. Opera- __ fiscally, however, there seems to be no way in which individual beliefs _' "gamma attitudes can be measured with precision, thus, behavior is 7 ~ gas a function of something more general. That which is termed at- ’ ' "in operational term is, conceptually speaking, an attitude system. I. l. * .' e 2.. 133.} u 1.1, .c v I. w‘ “.1 ISO: "‘ . . as ‘ .A‘ U .‘_:W' . .1.‘ I I "all "g. Ora "O: ‘ai. o... "‘ML .en' 5... .p. ,eee. . sea: ..‘t s Retinal 5.“: 12132;: fig": ~-2.‘;‘.ies 81;: K ‘1 ~ ‘ N . . .. _ :‘N “fi Q“~‘ ' ‘ . | "A. "1‘1“ x,’ um“ ,l. 18 Hhat is being measured lies somewhere between an attitude and a value in level of generality. D. The Period The period chosen from the history of the United States Supreme Court for analysis using the described model is the five-term period beginning in October 1951 and running to June 19h6 (or through the l9b5 Term). These are the five terms during which Harlan Fiske Stone served as Chief Justice. This time period will hereafter be termed the Stone Court, and it is from the Stone Court that the decisional data are secured for this research. The five terms under the Chief Justiceship of Stone were chosen for numerous and varied reasons. First, these five terms are extremely sig- nificant in terms of the policy output of the Supreme Court. From both a political and a constitutional standpoint, these five terms are dis- tinctively rich with respect to the substantive policy output and policy priorities expressed by the Court collectively. This was a five-year period in which the Court refined and expanded the policy direction be— gun in the spring of 1937 in such decisions as West Coast Hotel Company v. Parrish,” and National Labor Relations Board v. Jones & Laughlin Steel Corporation.60 At the same time, it was a Supreme Court which did not fully achieve the status of "judicially activistic" as functionally defined by Schubert61 given the concomitant policy predispositions of President Roosevelt and the Congress. The Stone Court provided policy reinforcement by means of supple- _ ,‘Ienting outputs from other decision (policyu-aaking sources with its . r: Hill-sanction and seal of legitimacy. The Stone Court never aggressively ~‘ to assert a policy-making lead relative to other policy-making fl .Ote".~°‘ . —‘ “D‘s-I‘d. C ’03...- O. ‘1 a H‘uoa UV ‘ . 1 e v . ' a. a a, 6. l 0—...‘1 -.s o. 2'! 2322326 - v '3“‘,‘ "'9~, Q Q -9. I 4.x, .9: :3" ‘.."'I :- ~e¢ .. ....-\. i :."'Q “'"m..' . .. e ..':‘ :' C .31? A; ' “'a ‘3. ea. D I Us Lin. K 3 ~; 3.. ‘ 4 31:,“ ..‘5 :1 h “ \2 _. . a ‘E fl .1“ V 9. “Sam - ‘: ‘ a H .‘{: Q a: authorities. Nevertheless, the Stone Court did give its approval to the attempts to broadly expand the powers of the federal government, parti- cularly in the area of regulation by Congress under the provisions of the commerce clause. Second, the Stone Court was almost totally the product of Franklin D. Roosevelt's appointments. After withstanding more than four years of obstructionist response to the New Deal legislation by the pre-l937 Court, Roosevelt had the opportunity to appoint (or elevate in the case of Chief Justice Stone) nine of the eleven members of the Stone Court. Justice Roberts, a hold-over from the Hoover Administration, and Justice Burton, who was appointed by Harry Truman, were the only Justices not directly appointed by Roosevelt. Thus, the period allows one to examine the ef- fects of re-shaping the Supreme Court through the appointment process, It provides, in particular, an excellent occasion for the consideration of Dahl's suggestions relative to the role and capabilities of the Court in the policy-making process.62 Stated differently, one is able to ex- amine the relevance of life tenure on the policy independence of Supreme Court members and the Court collectively. Third, the membership of the Stone Court is relatively stable. Eleven Justices sat on the Court between l9hl and l9h5 with seven span- ning the entire five years.63 This stability of membership minimizes the problems of missing data which increase in proportion to membership turnover. Likewise, it maximizes the utility of longitudinal or cross- term analysis of the Court by reducing the number of ranking judgments that have to be made by the researcher. This increases the precision of all subsequent operations which are based upon the contents of the Catt-an scales. 4" m 7-“ ’3 ---e-v-;s to.-. saw my. -. llle'a. " 5.2. ..2 “verrev “.5...- -.‘.'Q. ‘Ieuts..| . ‘v ~='9;8‘~'.. ‘ ”Cu... " N am...‘. ': ‘ '1»- z. ......;32 13‘. e l‘. .1.,_.':’ t... 't. “'6'! uni 9‘" 'f ‘. g 5“.“ ‘¢.3c A: . g‘ 5.. “t" ‘F‘e. 3“". :39 ‘\ ‘32:";h ‘H..:= 3“ a ‘I. e < flu“! Nut 3 £95. 3‘ ya. 4 H.- Q ."~ 4 e' . 'g' ..Se" ‘1 M e 2. ‘. R. A ’ H.e 1y 0 tw- ‘ e :1.‘ Mtge TIC; . ‘.‘< 33"... ' 'q‘ 4 . ' ‘t is . .1. Jo ‘ ‘t ~‘ ~. Q*' \{9 ! 8.3 O, 0‘ $2 ‘ .'u:" “'13”: x Fourth, this period had been previously studied in substantial depth. The current research allows for replication of Pritchett's ana- lysis in a substantive sense, but also provides an opportunity to con- sider the divergent methodological techniques used and assess their respective utility. There is also opportunity for cross-Court evalua- tions. The periods immediately before and after the five terms under consideration here have been subjected to comparable analytic procedures at Michigan State University. All of these projects relate directly to the exhaustive primary research project currently being conducted at Michigan State under the direction of Professor Harold J. Spaeth. The specific areas of comparative consideration include the evaluation of the applicability and utility of the model used across historical periods, an examination of the continuity of specific psychological dimensions of the Court's decision-making, and a weighing of the differences within the Court itself in this psychological sense. Fifth, the politics of the period are subjected, to varying degrees, to the environmental influences of the national emergency created by the Second world “hr. The United States had just emerged from another na- tional emergency - the Depression - in which the Court played an active and most determining policy role. The war is an added variable in the sense that it is not common to many other time periods. Some highly significant public policy questions came before the Supreme Court during these five terms relating to the powers of the federal government during the emergency. It provided a clear test of whether a constitutional government can operate without substantial change during a period of emergency. It also cast many other questions in a different context on ~ _ Mn, e.g., freedom of speech, subversive political activities and j‘;hfiiueistions, etc. In short, the period allows for the consideration of K 3.22: a: not 1.5.! war at) 5:1; teem:- patterns. 2:515:12 miner an 1'1 1:00;" A P I. 1 cud-..OEB ”dict‘r$ uni < r . 1'. 1 ' ., mazes W the 311'- :em-qw 0F”. . oe‘g” tugs 3:10: r23 0‘ 9e- :nn A I a. udrreu VC' 0-..0... t e. ' as, a; ...e :ezrocolzg: «:1, which is 1:7“- ' ~' . ”3.1.3593. dun: ‘ur‘ - '3'. Luec'iately pr :s:’ ~ ~- ..o.;e..m ca poli ‘\ It; :3 a‘fi‘ u «'3 U .3 being co 3: .."n-‘ "k a from Us '. ‘x.£e¢ '. h ' 4 a1 OUJECtIVC ‘ search . u to e <35... L eds-r98- ‘ yUQSS m0 351;. .. a. " ‘ “9 reseam ‘31:: a5 a tqe " stone " it“ ‘ 7.“? e ”Imus ‘1'. :re 21 Whether or not the war added a unique dimension to the judicial decision- lmking; ‘taehavior patterns. One of the objectives of the analysis will be to determine whether an independent empirically defined dimension can be identified reflecting unique behavioral responses stemming from the emer- 89003’ produced by the war. Finally, this period is noted for the absence of unanimity among Embers of the Supreme Court. The high rate of dissension maximizes the utility of the methodological techniques employed. The data from the Roosevelt Court, which is reproduced in Table 1, reflect this extremely high “is of dissent during the Stone Court period as contrasted with the Perdod immediately preceding. Thus, this period, with its extensive lack Of consensus on policy issues, offers extremely "rich" data for the type or analysis being conducted in this research effort. ‘1‘; Iarief recapitulation shows that the bases of the current research stem Primarily from the work of Pritchett, Schubert, Rokeach, and Spaeth. Th’ fundamental objective of the research is the determination of the 4001-19“ making structure of the Stone Court. A closely related purpose of th. research is to examine the theoretical utility and adequacy of the 8“T-ZLIIulus-response model as it is applied in the area of judicial W's—Or. The research also allows comparison of the decision making “mt“ of the Stone Court to adjacent courts as well as methodological gm! substantive comparisons of Pritchett's seminal work on the Roosevelt 301111;- The general hypotheses under test might be stated as follows: ‘ - It is empirically possible to reduce the numerous issues that appear in the cases before the Supreme Court to one, or two, or three in number by focusing on the values, attitudes, and ideologies present individually and/or collectively on the 8 Stone Court. - The decision making structure of the Stone Court is multi- dimensional in character unlike its immediate predecessor. Thus, it is hypothesised that the Stone Court is a transition .ut‘ n... ‘l :ak 0 his “IQ PMs «rm t “it. -\£ PM. ad DC sf. 1 .\~ A \s Iv e ‘59. U \ i I m ‘ x W 1 I ‘ I I e. .fia‘ ON a a I . , . - w .s on - -. iv ...Q. J\ :5. mt . Q uJen W, \ Auk ff. \ . 2 v \ , . . C . y a x .n. e . x C. Q o a r . 22 RATES or DISSENSION: 1930-19h5 Termséh TOTAL noummous DISSBITING OPINIONS OPINIONS VOTES fi3?""75iii i3?"?3?55 168 18 10.7 h6 .27 151 26 17.2 55 .36 169 27 16 .0 61 .36 166 27 16.2 66 .19 172 22 12.8 61 .35 160 26 16.2 80 .50 162 31 19.1 82 ' .51 170 16 27.1 88 .52 1h? 50 33.6 116 .78 lhl 112 29.8 85 .60 169 h? 27.9 117 .69 1777 362 20.h 857 .h9 162 59 36.11 160 .99 171 75 h3.9 176 1.03 137 80 58.h 19h 1.h2 163 ‘ 9h 57.7 2&5 1.50 137 77 56.2 156 1.111 770 385 50.0 931 1.21 ‘ portion of the term between the resignation of Byrmes and hing of Rutledge for the entire term, and the Chief Justice's seat meant _ 23 court in terms of the relatively complexity of its decision inking disensionality or structure. Snperficially compatible ideologues when placed on the Supreme 1. Court are as likely to fragment as ideologically incompatible ...ianstices. .- 1W refined techniques of measuring decisional behavior «on . ought to allow socio-political correlates of behavior to ' ‘ appear despite the gross character of sonic-political vari- -‘n ables used. 5533. Greater refinement ought be achieved when empirically-defined :35; decisional dimensions are used in place of categorically-defined data thus enhancing the utility of bloc analytic techniques. _:**1 V.4._ '._ 5.. . (—4”, .. . ‘ . wraith. I. . a _ 1 .: l I 3’1‘3""'8c ‘ ' “I imam of 1 119.2311 711:1 aunt: r15 izazscere o: t“ , Fff'f-ia‘ N. ”I ‘All Q I n“ ‘ . I C’v’v, :r. 1.:- e. "I one“. a ' 1. fl “ewe...»‘u '. Wm: essa; ”35 #C-P’al 3.2 ’q . I“! 1,353, P? 0e 2-31 eds e _. o r FOOTNOTES ’ 1. Pritchett, C. Herman, The Roosevelt Court: A Study in Judicial Pelitics and Values l937—h7, New York: Macmillan, l9 . See also, Pritc ett, “5151.13. of Opinion among Justices of the United States Supreme Court,“ American Political Science Review, 35, l9hl, pp. 890-98. 2. PFItcEEtt notes these observers In an essay entitled, "Toward a Renanscence of Public Law," in Joel B. Grossman and Joseph Tanenhaus, '32., Frontiers of Judicial Research, New York: John Wiley and Sons, 1 9. pp- — - 3. Discussion of this research orientation transition can be found in numerous essays, e.g., Schubert, Glendon, "Bibliographical Essay: Behavioral Research in Public Law," American Political Science Review, June 1963, pp. h33-h53 Joseph Tanenhaus, "SEciEI Science HEthods In the Study of the Judicial Process," in Thomas P. Jahnige and Sheldon Goldman, eds., The Federal Judicial S tem: Readin s in Process and *Bshavior, New YorE: Holt, Kinshart and Winston, I968, pp. 153-57; and PFItchett's essay in Grossman and Tanenhaus, supra. h. Pritchett, op. cit., p. 26. Se mtchett, o e c e, pe 33m 6. Schubert, Glendon, The Judicial Hind: Attitudes and Ideologies of Sn reme Court Justices - 3, Evanston, no s: Northwestern University Press, 1965, pp. 5:5. 7. Ibid. 8. 3351311.... op. cit., p. 10. 9. Ibid. 10. [Esswell, Harold, Power and Personality, New York: Norton, l9h8. 11. SOhubert, OEe Gite, p. e 12' $11-$13 2 13. 0 art, 0 e Cite, pe 13e 1h. Ibid. mutt, OE. Cite, pp. 13’lhe ghubert, OEe Cite, pp. 111-15. Schfihert, o . cit., p. 15. One of the gist of Schubert's discussions of this aspect is contained in a selection entitled, "Judicial Attitudes and voting Behavior," in Thomas P. Jahnige and Sheldon Goldman, eds., The Federal Judicial stem, New York: Holt, Rinehart & Winston, 1958, pp. 555365. This no action draws upon articles such as "Judicial Attitudes and Voting Behavior," Law and CotemEEraEE Problems, 28, 1963, pp. lOO-LZ, in which Schube exam nes e c s o ehavior of the Court during the 1961 Term using essentially the same model. Schubert, loc cit. Ibid. ’4'"- Thurstone, Louie L., Multigle-Factor Agglygie: A Development and gipgnsion of the Vectors o n , cago: Univers y o cage Press, 9 . ’ Wuhan, OE. Cite, pp. 22-23. Ibid. man, 02. cit., p. 2h. Schubert, 0 e Cite, p. 25e V Coembs, 6155.17.71 Theory of Data, New York Wiley, 1961;. 2h I. I . h m’. .0... ~ \."I 0" ' "'- ou’ a, . w Send-flue? “"'v03 a... 'n” 9.," - r 61.13.“, re“ v . “In I. g m1 -. 1n :..-. 3,, ”:39 ‘1'3‘ ' 0». : .‘o. . 5“: v D. ‘ 01-‘ DA 51.. A Om, {NH 9' J. - . $31. ‘Cletflg ~e.‘; .‘ ' ‘ Q\\-. 'I.-‘..‘s ' I :O'KA’ \ "-1-, 12:. L" ” .~ ‘ N Int”, wt. .~"-., '2' ~ ‘ "I. ‘ '3 UH:‘ ‘. . Q .AUeEES: A ar‘ s .!m 3:. ‘V‘.AA“. ' .1 I ’ ” ‘ ‘1 i c - lesna. c. a», 37. 39- 25 &humn’ OE. cit., p. 27- Ibid. m“, 02. Cite, pp. 29-37. Schubert, o . cit., pp. 37. Ibid. Sahubert, o . cit., p. 38. Comparable discussions of the model used by Schubert n earlier studies can be found in, "Judicial Attitudes and Voting Behavior: The 1961 Term of the United States Supreme Court," Law and Contem Problems, 28, 1963, pp. lOO-hZ; "A Psychometric M5351 of the Supreme Court,“ American Behavioral Scientist, 5, 1961, pp. lh-lB; and "The 1960 Term of the Supreme Court," American Poli- tical Science Review, 56, 1962, pp. 90-107. Most empirical research GEIIIEIEE‘EEEEIEEI?E scaling use variants of this model as well. Schubert, loc. cit. Schubert, o . cit., p. 69. Wallace Mende son, "The Nee-Behavioral Approach to the Judicial Process: A Critique," American Political Science Review, 57, 1963, pp. 593-603; Wallace Mendelson, "The Untroubled World of Jurimetrics," Journal of Politics, 26, 196k, pp. 9lh-22; Theodore L. Becker, "In— quEE Into a SEEooI of Thought in the Judicial Behavior Movement," Midwest Journal of Political Science, 7, 1963, pp. 25h-66; and Theo- dore f. Becker, Political BehaviSrEIism and Modern Juris rudence, Chicago: Rand McNally, I965. -‘ Tanenhaus, Joseph, "The Cumulative Scaling of Judicial Decisions," Harvard Law Review, 79, 1966, pp. 1583-9h. Spaeth, HEroId J., and David J. Peterson, "The Analysis and Inter- pretation of Dimensionality: The Case of Civil Liberties," Midwest Journal of Political Science, XV, August 1971. Spaeth and Peterson, 0 . cit., p. 2. Spaeth, Harold J., “Unidimensionality and Item Invariance in Judicial Scaling," Behavioral Science, X, July 1965, pp. 290-30h. Spaeth and Peterson, Ioc. cit. Spaeth, Harold J., "The Operationalization of Attitude, Value and Ideology,“ Public Health Service Research Grant Project MR 15365-01, from the National Institute of Mental Health, 1968. Rokeech, Milton, "The Nature of Attitudes," in International Enc lo- dia of the Social Sciences, New York: Macmillan, I968, p. IS. Efiiw MEFFIn E., .63 Jack M. Wright, Scales for the Measurement of Attitudes, New York: McGraw-Hill, 1967, p. 3. m The Judicial Mind, p . 228-33. Shaw and N g t, o . c t., p. E. Other very helpful discussions can be found in Rokeacfi, Milton, The Open and Closed Mind, New York: Basic Books, 1960, Chapter 2; and Milton Rokeach, Beliefs Attitudes and Values: A Theory of Organisation and Change, San BFancIsco: Joseey- 33, a PP- " - swth, 0 e "ite, pe 2e Rokeach, 8, Attitudes and Values, op. cit., pp. 115-16. Spaeth, op: vit., p.4E: Spleth, o e ”Ute, pa 3e Robuhfgfjfi Attitudes and Values; Daniel Kata, "The Functional Approach 0 e u o t tu es, blic Opinion Quarterly, 2h. 1560, pp. l63-20h; and M. Smith, J. Bruner, and R. to, pinions and Personalit , New York: Wiley, l96h. ..e' shill-a I. O . O . C . o o C I C e s. ..-- . '0 I . O a. O a. I a. I» c’.‘ - D'_\ * - ..u 0.0 an I." Inn, ..y. I O .n;69 _:~ ce‘vtn’ aI-OA u. 1323113: If ‘7! 35, g. . :u'.’ Rh '1». \ J l \- SS. 56. 57. 59. 61. 62. 63. 6h. 26 Spaeth, loc. cit. Spaeth, Harold 3., and Douglas R. Parker, "Effects of Attitude Toward Situation upon Attitude Toward Object," he Journal of Pa holo , 73, 1969, pp. 173-82. math, 0 e Cite, pa 60 355—US 379. In West Coast Hotel, the Court, in a 5-h decision, upheld against due process claims a Washington statute providing for minimum ages for women and minors overruling Adkins v. Children's Hospital (261 US 525) and Morehead v. New York ex. rel. Tipaldo (298 US 587). 301 US 1. The Jones & Laughlin decision, again findings the Court split 5-h, sustained the provisions of the Wagner Act establishing the National Labor Relations Board and, thus, the exercise of commerce clause power by Congress in the field of labor relations and the economy generally. Schubert, Glendon, Judicial Polic -Makin, Glenview, Illinois: Scott, Fbresman, and Company, 1955, pp. {53- 57. Schubert here proposes to define activism and restraint in terms of policy relationships between and among the Court and those with whome the Court shares decisional authority, e.g., the President, Congress, administrative agencies, etc. An activist Court is, thus, a Court out-of-phase or in disharmony with other decision-makers; restraint finds the Court in policy harmony. Dahl, Robert A., "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law, VI, no. 2,1957, pp. 279-95. Chief Justice Stone actually died late in the 19h5 Term (April 19h6), thus, he did not sit through the entire five-year period. His suces- sor as Chief Justice, Fred M. Vinson, did not assume the post until the beginning of the 19h6 Term. In addition to the qualification of Stone's membership, Associate Justice Jackson was absent from the Court for all of the 19h5 Term serving as the presiding judge at the war trials at Nuremburg. Hence, for the 19h5-h6 Term, the Supreme Court was composed of eight justices, and functioned with only seven Justices from the time of Stone's death in April until the end of the term two months later in June of 19h6. This qualification does not, however, detract from the statement regarding membership stability asserted above as a significant asset of this research project‘s decisional data. This table has been produced in large part from Table I, p. 25, of the Roosevelt Court, with the two aggregate rows (1930-19h0 and 19h1-19h5) added 5? EB; author. . ‘ C... ‘2 star‘..s‘ V Q h‘ ' ee-‘ee. ._. e on-‘t- v.c,‘...~ .01, ‘ O I ' “* ...l 22.. .331 1.52.. I l mu. ‘ . .' ' ulLS‘: .3 we u tee... '- ‘W ' . ..4 v... n ‘.3‘cf '. ‘ . .uae‘ ' A. . . “h'c'90u 'v'ee u.- be. a :23 m w71:9 . a 'e-. .-§"" 0 o a. . b . h A .9 d ‘.‘ Aaa' .M'e. 1" .a A, - n‘VS " a3: .3 ‘1‘ ~-._ “ C ‘ I A N..Yc as: is. ..i g .H . . ¢b‘. .Lu‘s 335‘ 2? CHAPTER TWO - THE RESEARCH METHODOLOGY The stimulus-response model upon which this research is based re- quires operationally data consisting of, at minimum, order relations drawn from distinct sub-sets of a defined universe of items. The item universe is the non-unanimous decisions of the United States Supreme Court rendered with full opinion during the 19h1 through l9h5 Terms. Information on the specific cases as well as the aggregate sets of cases are provided in Chapters Three and Four. The dominant-subordinate relationship of the model used in the current research lends itself to the application of both unidimensional as well as multidimensional techniques of analysis. Accordingly, such techniques of data processing as cumulative scale analysis, correlational analysis and factor analysis were used. This chapter will summarize the methodological considerations generally, but also examine specifically the chosen techniques and their respective function in this research. Most of the analyses will be com- puter-dependent, thus this chapter will also provide descriptions of the computer routines employed. Particular attention will be directed toward summarising the inputs required, and the character of the computer output. The fundamental constructs from the model for this research are be- liefs, attitudes, values, and ideologies. The operationalization of the constructs begins within the stimulus-response relationship, and the notion of dominance. Focus is, thus, placed upon the behavioral component lot attitude response. Rokeach's conceptual definition of attitude, dis- 7 cussed in some detail in the preceding chapter, has been adapted for this "t __r u regeareh because of its focus upon this behavioral component. Furthermore, i 28 the overt behavior of the subjects (the Supreme Court justices) from which the attitudes are inferred are data readily applicable to this theoretical definition. It is recalled that Rokeach describes attitudes as being relatively enduring in character, the composite of interrelated beliefs, structur- ally analogous to the psychological constructs of beliefs, values, and ideology, and motivating a predisposition toward some preferential re- sponse. In addition, Rokeach suggests that an attitude contains an ob- ject which must be considered within a situational context.1 In other words, an attitude is an interaction of a focus upon attitude object (A0), and a focus upon attitude situation (AS). The operationalization of the concept of attitude for purposes of this research begins with these no- ‘ tions of A0 and AS. A. Cumulative Scale Analysis The first step in transforming the voting alignments of the non- unanimous Stone Court decisions into data which are amenable to the techniques chosen is a preliminary classification of the cases. This preliminary classification undertakes to categorize the cases on the basis of the semantic or substantive legal content of the specific cases. Throughout the preliminary classification, the primary objective is to minimise category breadth in order to produce as much substantive refine- ‘mmnt and specificity as possible. The categories of cases produced by ~thl preliminary classification are subjected to Guttman cumulative ieching techniques upon completion of this preliminary and somewhat .'.limpmessionistic consideration. ';§)§§irtuquttman scale analysis is a means by which it is possible to deter- ‘ . ‘:f: ’ *"‘V" a series of responses, usually to questionnaire items or A 3" ~01..." De- .‘ sc- Om." .‘ yea... 0| ..evel ed :r-af e' .-'e0 .1 N... 09. ‘x 5 .¢'-"' " oeu- r: ‘ . . w.“- u...- .1- u 95 ‘1 II a w. . e a: I I . .I DUI :. a... tees .nuuw one. I e .e. \ .e 4.9. .5. . a .. . h» ”be- C e‘ 9 e .e AI ..Ie . an». a.~ te‘ e w .. . . GA . v n ...W . . x be. u”. heir. M... . ..\ 5%.. ti. .... . \ ...:.. Ix ..e to .7. ... \ue! In: t . e 0 . e v 29 interview schedules, measure a single underlying attitude.2 The cumula- tive character of the method comes from the manner in which patterns are formed by the responses to the series of stimuli. If each of the items varies in the degree to which the subject must respond, then you would suspect that the subject responding in a positive fashion to the most extreme statement (or other stimulus) would also respond positively to those stimuli which are less extreme. The best example is the often-used measurement of height. The Guttman technique operates on the basis that if a number of questions were asked about a person's height, e.g., are you five feet tall, are you six feet tall?, etc., a person five foot-six would respond positively to the first question but negatively to the second. Each case decided by the Court represents a separate stimulus to which the members of the Court respond either positively or negatively. In the development of the Guttman scales, the group of cases in the scale is viewed as a series of questions similar to those of an inter- view or questionnaire item. The attitude objects and attitude situations are utilized by making them the substantive bases of the Guttman scale- sets. Each scale is, thus, constructed by taking cases which reflect the attitudes of the members of the Court toward certain objects and situa- tions which are presented in the individual and subsequently collective cases in the category-scale. Plus and minus signs are used in the build- ing of the scales to note the vote of the respective justices. While some effort is made to link these signs across the scales, usually on the basis of traditional liberal-conservative positions, the assignment of a sign is not ultimately a biasing process. If a relatively arbitrary de- cigien.is made as to direction or sign assignment and it turns out to be ;1§ip3mmistent, this will appear in the correlation coefficients. The . Viz“. J" "'11“! tier-y A ...A b e ‘ e an" " , disagree-eve an L” “ t’mev; e.- .-"0‘ CI .1 . V ' A u 01'. ...E .323," ’3". ' It. Nigel is En'zct P}. ..e.. .- ‘EH une..F .m’: "Dié‘... “J“‘kle'ga F‘~ . gs." 55:0, or 2511532:- g. Q. “:3 ‘LESe :‘ 5 p \ :3 a; .. t " eué A; ~ ‘25 i::;;~-~; ‘. V. e. AC? a a aw 'i ‘\ n‘ we Of A“. in: L‘. ‘ y \‘ \. V3-v1 sub: . ‘N a h‘ V :e. t A ' 5»?! Us“... ”‘31: _ w ‘ 3‘ f P 30 scale will either be found unrelated or highly related with a negative ' coefficient. In the latter case, the signs may simply be reversed after appropriate reconsideration. The operationalization of attitude is based largely on the A0 and AS motion as mentioned. The primary attitude object in this research is the legal entity involved in the legal process. This legal entity may be an individual, e.g., a taxpayer, a criminal defendant, a property owner, a negro, etc., or a business (or businesses generally), an organization such as a labor union, or the government at either the federal, state, or local level. The primary attitude situation represents the substantive legal, political, social or economic issue involved in the aggregated cases. These situations are defined as specifically as possible. For example, the AS for the set entitled Fair Labor Standards Act: Contracts is the applicability of wage and hour provisions of the Fair Labor Stan- dards Act to employees governed by negotiated work contract or compen- sated on an other-than-hourly basis. It is also possible to have subordinate or secondary AO's and AS's. These secondary objects or situations, where they may exist, represent additional specificity on the primary AO's and AS's. They may represent some type of qualifying condition which operates in some manner on either the primary A0 or AS. The primary A0 of criminal defendant might be fur- ther refined with such secondary notations as to race, gravity of offense, or the number of times the person has been convicted. The addition of a supplemental AS further refines the situational aspect. The A5 for the Radio Regulation set is regulation or attempts to regulate the operation or radio networks and/or local licensees by the federal government. The , secondary AS's are freedom of speech and freedom of the press. Additional 5bfitimement for this sat might take the form of Judicial deference toward )1" g, . p-OI'." m -- he set-1"". .‘e'e' :- 31.an v ‘i ' a“-.. ‘ i a tee a.- 0.: ”' MD. a. A an: e‘e-ieEseb 5 In." ..‘ .. ' . .3 0e. at... \.: u. . u' ”N. ~ ‘ 5 L ': 'Pu fit.“ r-'. u. . ...e: ’p‘ as 5a.: ‘K V .. fik=~ "‘ A V‘y“ ~ r‘:~ - ~“d. .-’ .~.‘ A A, a " h :. ’v. a ~ ,: e h "a - m T"._ "e:‘ 'u \.= V.‘ A ' m .l' v£ A V .‘._ “ Zea! e'e. . :wS {3‘3" IN '\ . ."E .‘f‘u. 0 mi. V \3- .l‘ ‘ =‘*-‘ U‘.‘ ‘ 1 ... \_.I: I . ‘ Q:‘e; e .‘L‘ \‘9. r‘ “A M‘. ‘b, a‘ a '3 . l. - e.‘fi.‘- s n. E‘Vn ‘ I \ e 31 the substantive decisions of the federal regulatory agency, or Judicial supervision of federal agency decision-making. In summary, the A0 and AS for each category-scale are derived from the content of the cases in that set, and they become the descriptive as well as the operational foundation of the set. The content dependence of the attitude object and attitude situation produces tremendous variation in the specificity of each category-scale. Sixty scales were generated from the Stone Court non—unanimous decisions. The attainment of maximum category refinement through the A0 and AS while including as many of the formal non-unanimous decisions as pos- sible was the primary objective of this phase of the analysis. The ap- proximation of perfect reproducibility, however, was also a top priority concern. Reproducibility is a metter of extreme importance in the utili- sation of the Guttman technique. The responses of a subject to all items (cases) are theoretically determinable by the subject's position in a given scale. A non-scale response or scale "error“ is, thus, a response made by one of the subjects which could not have been predicted from the subject's position in the scale. Using the Court as a concrete example, a justice would commit an "error" if he supported a position after having failed to support less demanding or extreme positions or failed to sup- port a position after supporting more extreme positions. Scale errors, of course, are entities which should be held to absolute minimum in the construction of scales. Scale errors can be measured in several ways. The most common scale error'leasnre is the coefficient of reproducibility (CR). The CR provides “ the~psoportion of item responses that can be correctly predicted from the u '25 u -fspmha positions of the subjects.3 It is suggested in Guttman's original n.— Sen... ' ‘ 1"...” IF I I h-nggy..:.. ~ «the 3:2". ‘ee ' e ' -.e as '0‘. ...E.=' H "‘-e . | K“; =‘ A0. ' W~¢~ .- k. .. \q‘ .‘ . P ‘ ‘42“. . . g. .‘ s. ‘1 ‘" :‘ u»: a . q« ‘~‘§" . S ' a I s. as p C t as ‘.‘ 0 5-1. .4 , _ ‘e“("-- "the: 5.. ‘C a'-‘ at V. * ,_‘.,R v). at \f'm' I; . "w I 9. an“ 0 .\ fl . 3“ :‘ I a. f . rvs'.‘\ ”i I am \ r. ‘ e_| \ .ec 0*;- 'H.’2 32 could be accurately predicted was satisfactory and met the criterion of unidimeneionality.h A more stringent minimum was set for this research; the minimum coefficient satisfying the unidimensionality concern was a OR of .95 or ninety-five percent predictability from scale positions. This more rigorous criterion was established because of the small and stable character of the Court's membership, the high frequency of per- sonal interactions among the members of the Supreme Court, and the gener— ally superior capabilities of members of the Court to both communicate and generalize. Because of these features of the Supreme Court, Spaeth has persuasively argued for the more stringent minimum CR to satisfy the unidimeneionality criterion.5 Spaeth also added to the rigor of another aspect of the Guttman scale technique as it relates specifically to its application in the area of judicial research.6 It is possible through the ordering and re- ordering of cases (items within the scale) to reduce the number of non— scale responses which inflates the CR. This re-ordering was common practice among those who early utilized the Guttman methods, especially where more than nine justices were considered.7 Spaeth proposes that cases be ordered such that marginal lines are not crossed. All the de- cisions with 7-2 marginals, for example, would be placed together rather than intertwined with 8-1 and/or 6-3 decisions with such a procedure. It is impossible to reduce inconsistencies or non-scale responses merely by shuffling the items around within the scale until the fewest number of errors (the highest OR) was achieved. The other criteria for the evaluation of each scale were also used. The first is the coefficient of minimal marginal reproducibility (MMR) Relish is used in conjunction with CR. The MMR represents the empirical _ fies, Q I 0 £22 .1235 3. ‘ ! ‘euea 0‘ or c‘ "if... a 5533‘. of 1:9 2: f2 3:216 '01 LBJ-tile x If Q n... “ w... I. we. and.“ . = a' _ fudgs 'r‘: in; :43 Ca.£e :\" 1 “5‘5" ' I I ‘l .“~:5‘e 3F \1 kl... \' 3'1" V ”a ac. ‘ 5e “r a 7.4 "a 3,“; P 'a 33 of the ratios of the modal frequency to the sum of the marginals for each respondent (or case)"9 The MMR, thus, indicates whether the CR is an artifact of the modal category frequencies. The difference between CR and HMR should be maximised ideally. The CR has a numerical maximum of 1.00 while no me can have a value of less than .50, therefore, computa- tional contraints do exist with respect to the size of the CR and MMR difference. The other criterion used for each of the scales is Menzel's coeffi- cient of scalability.10 This coefficient (08) can be somewhat more rigorous than the CR where 8-1 and/or 7-2 decisions predominate in a scale because the computational method of the coefficient does not be- come distorted (as the CR may be) by the "inclusion in a scale of deci- sions or respondents with extreme marginal distributions."11 All responses including single dissents are incorporated into the computation of CS unlike the calculation of CR. The minimum level of acceptability sug- gested by Hansel for the CS is .600. Only one of the sixty scale-sets in this project (Religion) produced a SC of less than .750. The scales generated in this research achieved remarkably high coef- ficients on all criteria. The mean CR was .9878; the median CR is .987; the lean HHR .82h9; the median MMR .820; the mean CR-MMR .1628; median CR—MHR .1675; mean CS .9h02; and the median CS .9hl. It is evident that all applicable scale-evaluative criteria were more than adequately met in the construction of these Guttman scales. Appendix D provides the various criterion measures for each of the individual scales. Two points ought to be made at this time concerning the cases which are included in the scales. The non-unanimous cases of the Stone Court ‘wflht included in a particular scale en the basis of substantive content a 'fi, ind “goodness of fit" with respect to the scaling criteria. There were e e “‘.-A o‘- as .\ , ' use..s~--. fl l-:l . a F' ‘ up. I U. | g: :: {M'- - - -e As.“. -.- . ”'VI-u '3 3‘3?! . . I :..- Q. A‘_; f""‘ cu a.“ ‘ , . : e:e,‘ u? ""-- g. *:\s .09 b i.r- 've... l L.’ C": AA.. . anus .- In. ..e ‘ U s a. . ‘ e‘=le ‘ - "'ev'.a H. 1 t‘“ U . .‘ Na ‘0‘ ;. twe::e c .‘h. ' h s ., . ea...-I .a,. h‘. ' “'Vet‘ . .“ I“~ F 1.. J: “5‘1; - H‘ l 3» a e ..d: e. 1".) . Q _‘ a$ t ’ 5‘ | ‘5.“ ‘ O b O ‘2 "y 4 a ‘I u- \I .“h ‘ 1..“ .P ‘ I “at «4‘ Vi .‘~. 'ufi-e. 35 spurious correlation with other scales is just as real in this situation and great care was likewise exercised here. An example of this dual placing can be shown with the case of Mag- nolia Petroleum Company v. Sullivan H. Hunt.13 The case involved a con- sideration of a personal injury compensation award granted to a Louisiana resident under Texas law for an injury sustained while working in Texas. The injured employee then attempted to collect damages under Iouisiana's workmen's compensation provisions. This case raises the issue of liability for personal injury as well as the issue of full faith and credit. The case was included in both of these sets as no scale errors were produced in either set, and because the inclusion could be substantively justified. This procedure did enlarge the number of cases somewhat, but resolved an ._arbitrary decision situation that would have existed otherwise. There were also cases in which some ties in ranks for a particular scale could be resolved because the tied respondents both submitted indi- vidual opinions. Justices Murphy and Rutledge, for example, were tied in rank in the Right to Counsel scale-set on the basis of the six cases in the scale. In the case of Canizio v. New York,1h however, both Rutledge and Murphy wrote separate dissenting opinions. The rank ties was broken in favor of Murphy on the basis of the content of the two dissents be- cause of the intense character of Murphy's dissent relative to that offered by Rutledge. Murphy's argument, in other words, was discerned as being supportive of the more extreme position. These expansions were made only if one opinion was perceived as more supportive of a position beyond that of others represented in separate opinions. This kind of content analysis is subject to criticism, but where differences were (not clear,'ties were retained and the effect of possible observer bias ' ;.sehstantially muted. . . .l I a. I ‘ :9 1.. I.”‘ so- 3.. ...'.£. . ‘P'; _ 'vv.....“ ‘."'ea . - a n” 4: :c:.eg . ‘p n "" Qhaoflr“ n e 3"..“ L." 135' ‘c h. ‘0 I-.: ‘3' o, ‘ s to V5 ‘5 :9 e; U — 'e -'~-~-?~ 35 x:- e " ‘~. ._ be. 'e . e. g |:‘”‘ e.~_.‘i va' V ra’ ... cw: “:'.e = '." a ‘5 'u‘q. ‘ V~= er " i ‘7 "g I OA.‘\ "s I ;. '- A? H: 4‘ a F b: .‘ 0 \. - w vfiqr’ ‘ « I‘D a v C 'I" 5“. .‘\I:‘:P. w“' .Cr 5. \“_| u N.‘ ‘3 \ aa‘ ‘ N "1:. - .\ ‘_ e "a ‘ ‘V re‘a \I; Lav- ‘, n “fee "'13.. trv'k ., e U‘. 0‘ 'u ‘ 'e l~= c B. Correlational Analysis The basic data for the remainder of the analysis are the ranks achieved by each justice in each of the scales. The computer-dependent analytic techniques use intercorrelations of these ranks as the routine input. The intercorrelations are the associations between the respon- dents' manifest voting behavior in the cases included within the sixty Guttman scales. Two coefficients were initially used for these ordinal level data. The first is the Kendall rank correlation coefficient, sometimes refer- red to as the tag coefficient.15 Ranks were assigned to as many of the justices as possible (always a minimum of nine) based upon scale posi- tion. The Kendall coefficient provides a measure of association between two sets of ranks, in this case, the assigned scale ranks. There are no assumptions with which to be concerned with non-parametric statistics, hence, the tau is a highly useful coefficient for these data. The coef- ficients between each pair of variables (justices' scale ranks) become the cells of a sixty-by-sixty matrix. The Spearman rank correlation coefficient (rho) was used in addition to the Kendall tau at the outset. The rho coefficient was subsequently dropped because of the similarity of results. The rho, like the tau, is a measure of rank association, but in a computational sense is not equivalent nor are the coefficient values comparable. When the corre- lation is near zero, the two coefficients are relatively close in value, but as the relationship becomes greater, the tau tends to be lower in value than the rho. In any event, there is no way to precisely estimate one from the other.16 The correlation matrices were produced by computer.17 The program Q. _ :0: ' .Ff :I;. {- nut and 0.8;. ..u Dd- e 3:: a data value 0 I! e. . _ "a. -- n be $3.:“3: cc: 4 V '9 I ." 9. -I a..- ...a as;;gr:.e:°. K it: ~J .83.:‘a 7. U .- 1 v ~. .~ L‘. ’ :11 37 used was a non-parametric package with options for the tau and rho coef- ficients among a number of others. The raw data for the routine were the scale ranks assigned to each respondent from each of the sixty scale- sets. The program has the capacity of assigning cells for which there is not a data value of zero and excluding those cells from the calculation of the particular coefficient. Since there were a number of occasions in which one or more justice had not participated in enough decisions to ellow the assignment of a rank, the missing data feature of this program was extremely desirable. It was always possible to input nine ranks from any scale, but in some scales the assignment of a rank of ten or eleven was precluded because of insufficient participations. The com- puter program would simply reduce the E for such a variable (scale). The computer output included the coefficient for each variable pair as well as the number of subjects correlated and the level of statistical significance achieved by the coefficient.18 0. Factor Analysis The correlation metric of the Kendall tag coefficients became the basic input for the factor analysis routine. Factor analysis was used because it facilitates determination of whether a smaller number of var- iables can adequately represent all of the variables in the original matrix. It is possible through the use of factor analysis to determine the number of factors underlying a more numerous group of measures. Looking at factor analysis from another perspective, it is a method for identifying common variance from a number of separate measures.19 The specific uses to which factor analysis was put in this research were several in number. First, it was used to separate patterns of judi- “behavior as manifest in the voting alignments interrelated within fi" . .. .. 4 T . A 2A. 41:3. 330..., taxis tith 3 am: WWW." " 9' (I o . sen “On an a“ He Uer . I: I' ‘ I ’ ' F ‘ '33:. .. 395151335 in. 53'» I ‘I-qoe. l‘v.‘ 1' n“ | 37445.5 “love: 7 .r.- 7" - 2 :IaILU artist. of a fa; fit: “:fl‘r- we: ova-“.5 A: .563 f!‘ a 1 us...’ we. .erea' sizilarly _s° ‘: gee-1‘ ‘ .. 5‘ v' Hg- " ‘é .01“:é values 3:3": ‘H' t‘ . ‘0- ‘“ .r‘e Specs 1‘.“ fl .O‘b :"~.’. in; .5 :Nun'J ‘.v'.t.8d for eaa ‘. .. n s“. 3‘. cczm‘fln mud lity :- (“.133 3! e}. c u I .... ”I .- oumt 1‘, Ne.“ ~ "rill“ *‘ R a - § ' '5 n syatlal XI 38 the tau matrix. Second, the universe of data was reduced to manageable porportions with a minimum of information loss. Third, factor analysis was crucial in the determination of the underlying structure of the uni- verse of decisions input into the research. Finally, the results of the factor analysis allowed more comprehensive description and interpretation of the data.20 The product of a factor analysis is a matrix of factor loadings. A factor loading ranges from +1.00 to -l.00 and in almost every respect can be considered similarly to correlation coefficients in a conceptual sense. The actual loading values represent the association between the particular ‘variable and the specific dimensions or factors. A value known a commun- ality is provided for each variable in addition to the factor loading 'value. The communality represents the sums of squares of the factor loadings or the common factor variance.21 Speaking in spatial terms, there are several concepts which are es- sential to an understanding of the factor analytic technique. First, the measures can be conceptualized as points distributed through a space. The factor analyst attempts to determine the relationship of these points by sending vectors or axes through the points. The manner in which these points relate to these axes determines how the constructs are interre- lated (or independent as the case may be). These axes are called refer- ence axes, and the factors loadings are determined by the spatial rela- ‘tionship of their respective point to the reference axes.22 The determination of the basic factors from a body of data can be made in several ways. The most common method is the principal axes method. This method has the advantage of maximizing the amount of vari- ance for each factor it extracts and reduces the original matrix to the fewest.number of independent dimensions. “efe‘ezce 3195 O _ o “swarm. “.149 In. . . t e ,. . 3.2.: 5.7.3.1 0. lune ‘ ‘0‘..an A;;:q9; ‘ \u‘ I ”fl‘: UUU'VUQYU. M Imam by mating nit: 5352 criteria was:- 72 criteria provii r’l.u P‘ -.L...".. “fie Fur-W58 c 7423-; Lscation for the 333311335, 1 a " 358?: m of g: l. .or eaCh C011“ a . 1 :5 there are 4| .0). new pa‘ w . ‘ 3 {“88 with 10: u men there ar 0 1 . the Variab 5 fly Pair 0 f o .1? eyery pa; mid b onl first; 39 The reference axes are located in relatively arbitrary positions in the conceptual space though the interrelationships among the variables, either spatially or otherwise, do not change. It is possible, thus, to account for a good deal of the common variance without revealing the basic structure of the variables, which to most factor analysts is the primary objective. Louis L. Thurstone suggested that this problem could be overcome by rotating the reference axes through the space and pro- vided some criteria whereby meaningful solutions could be obtained.23 The criteria provided by Thurstone come from the notion of simple structure. The purpose of these guidelines is to establish a relatively standard location for the reference axes after rotation such that the dimensions produced are as simple as possible; the factorial complexity of the measures is minimized. Thurstone's five rules of simple structure are as follows, 1. Each row of the factor matrix should have at least one loading which is close to zero. 2. For each column of the factor matrix there should be at least as many variables with zero or near-zero loadings as there are factors. 3. For every pair of factors there should be several vari- ables with loadings on one factor but not on the other. h. When there are four or more factors, a large proportion of the variables should have close to zero loadings on any pair of factors. 5. For every pair of factors of the factor matrix there should be only a small number of variables with appre- ciable loadings in both columns. These criteria were utilized in this research in order to determine the simplest comfiguration of the variables.2h Orthogonal rotations were made in the placement of the reference axes in addition to utilizing Thurstone's simple structure guidelines. - Orthogonal rotations keep the factors independent of one another. When the reference axes are placed in factor space, they are located at ninety- degree angles to the other axes; the dimensions have zero correlations. 22:54:32 mama : in“: the flaws 5°. 2.95.11: 5 :tcrs i522: cr correlate: unferesce 1:23 a: 22 r'elatzve me: be . " ‘ ‘. . 4'3' .Iss'v an ‘59. f 5'37” ‘u - , b-At {Egg-.1”: 3‘ r"; I; —. ‘S"“ca:t czr: . .. M223. of tree 0‘: a are easily . sncn varia' ”336', Lease ob‘ nation. Sec. :ESEargn’ Drift. <-~ ‘ d “ 01‘ e to The oblique rotation is an alternative to the orthogonal rotation and allows the placement of reference axes at more than or less than right angles. The factors in this case are not independent, but rather are related or correlated in one direction of the other; the angles between the reference axes are acute or obtuse.2S The relative merits of these two rotational methods is a highly de- bated point in the field of factor analysis. There is general agreement, however, that regardless of the rotational method employed, there seldom are significant differences between the interpretations of the results of each. Those preferring the orthogonal rotation argue that independent factors are much easier to deal with in an interpretive and theoretical sense as well as being more manageable in a conceptual sense. The ortho- gonal axes are also seen as more stable than are the oblique axes. The proponents of the oblique rotation generally argue that simple structure is much more easily and satisfactorily achieved using the oblique rotation and that such variables as are found in psychological research are usually related, hence, obliqueness more closely conforms to the "realities" of the situation. Because dimensional interpretation is a crucial aspect of this research, primary dependence was placed upon the orthogonal rotation analyses. Quartimax and varimax criteria will be applied to the principal axes method in the use of the orthogonal rotation. These are criteria which have been designed to standardize rotations such that results obtained at different times and by different observers using the same input would be independently identical. The quartimax criterion is a method for maxi- mizing the values of the loadings in order to allow the clearest discrim- ination between or among the factors. One of the methods, for example, inmolves the raising the values of each loading by the power of four. 723, o; :csse, , . an... . o "=“‘5:. .Le Cl . .. y In a:-epos u—e he .dibggs ': .‘ AI a ‘II: I‘“ ' I K- v ,9 .5 van-12> v A O . ...‘..“‘fi [wont-‘4: c bl This, of course, disprOportionately increases the values of the larger loadings. In other words, the objective is to secure matrices (of fac- tor loadings) with "maximal tendency to have both large and small load- ings."26 The varimax criterion is essentially similar. In fact, it is a modification of the quartimax method which "more nearly approximates simple structure."27 The quartimax method focuses on the simplification of the description of the rows in a loading matrix. Often the results of such simplification is the development of a general or single factor. The varimax method focuses upon the simplification of the columns of the loading matrix. Varimax was developed to facilitate the achievement of factorial invariance as well as satisfy the simple structure criterion, hence, it is frequently considered as having greater utility in the kind of research undertaken here.28 The computer routine used for the orthogonal factor analysis was called Factor A: Principal Components and Orthogonal Rotations.29 The print-out from the routine includes the original correlation matrix, the principal axes, varimax, and quartimax factor loadings, the communalities for each variable, and the proportions of common factor variance accoun- ted IOr by each factor. This routine provides several control options which might be men- tioned. The most important one not previously discussed is the Kiel- ‘Wrigley criterion. This is a function which controls the continuation of rotation. It is a criterion value selected by the observer, and the rotations continue until a factor is encourtered which contains fewer than the set number of variables with their highest factor loading. The Kiel-Wrigley criterion was used throughout the research although it is possible to utilize the program without the Kiel-Wrigley control. This 3:35. mere :5 ~.. :., ._,,, ‘ ...E 51 .. b‘ V. ..3' one; u: . - p ‘ “n. I'vvov.‘ '. at 0., .n ‘3‘. I. ‘Q’w' “c ‘v. I. h2 was done on several occasions when rotational cut-off occurred attwo factors. There is also an Eigenvalue threshold which allows termina- tion of the extraction of factore when an Eigenvalue of less than a specified value is encountered.30 The FASCALE routine was developed prior to the completion of the data analysis, and it greatly facilitated the factor analysis. The routine consists of the SSA-l, MDSCAL, and TSCALE multidimensional scaling methods in addition to principal axes factor analysis. The program allows the option of one or more of the component subroutines and accepts as the input any matrix of similarity or dissimilarity and "configurations of points whose distances matrices are computed and analyzed as dissimilarity matrices."31 The program handles as many as fifty variables and solves through ten dimensions. The output provides a listing of the input matrix, factor loadings, communalities, Eigenvalues, a Shepard diagram of the solution, and plots of the solution points.32 The computer phase of the analysis had initially included two multi- dimensional nonmetric scaling routines - the Guttman-Lingoes smallest space analysis (known as SSA-l), and J.B. Kruskal's MDSCAL.33 Guthery and Spaeth, however, have found both techniques to be empirically and theoretically deficient.3h The FASCALE program was deve10ped by Guthery and Spaeth in order to simultaneously and systematically examine the monotone criterion on which both techniques were based. The data which were subjected to the analysis with RASCALE were nineteen geometric shapes whose dissimilarity and scaling solution is established. The data used as input for the evalua- tion of the monotone criterion, and the methods developed for achieving this criterion were, in other words, samples free from error. Using the various Options in FASCALE for SSA-l and MDSCAL, seventy-six separate H. -.c. b . .... U... I .. 4‘. : ‘ 1......“ a ..o, o... n o -- v . u ‘ 'v-nor-O '0. by. n " " In. .IEL-‘L if )‘Apo:‘ . .4... a N a . m ‘ma. A 'i \ L e p. ‘K‘ \h ‘ “v h3 runs with errorless sets of data were made, and the findings checked for solution congruence. Guthery and Spaeth found that the analyses did not produce congruent results. They concluded that unless one had some relatively clear notion as to the character of the solution prior to the use of either SSA-l or HDSCAL.which employ the monotone criterion, the results cannot be readily adapted as the solution. They suggested that this problem was a product of the limitations of the recovery capabilities of the two routines which resulted in substantial information loss, the inability of the loss functions of the routines to measure the "non-monotonicity of a particular set of points," and the difficulty in determining whether the structure or errors in measurement produced the discrepancies in cases where ap- proximation is the best possible solution.35 One other computer-dependent method was used in the analysis of the Stone Court data. This method was a clustering routine which, when used in conjunction with the factor analysis, proved valuable in a supplemental sense. The method was developed as a modification of the work done by Louis L. McQuitty,36 and is called Hierarchical Clustering Based on a Criterion of Largest Average Within-Cluster Similarity. The routine is more commonly termed Laws.37 The primary objectives of the hierarchical clustering method are to construct sets of successively more inclusive clusters, and to form these clusters in which intra-cluster similarity and extra-cluster dissimilarity are nmximized. These objectives, of course, are components of the more general objective of identifying types and sub-types. The LKWS method treats the most similar pairs of elements in a set of variable intercor- relations as the basis from which the clusters are enlarged. The LAWS routine also bases the decisions regarding acceptance or rejection of I.,...’:‘ a‘.q=6’ys n . l 5."... manner-o 0.1 bu n .. . v 1'" 'V‘ C yncflnq Q a. uncogooi.’ “0“ invea CC .I Q . "C O " ‘3I-‘c-n ten 9. ’“5 Von Vvo.n.5 :zters :rcfzcec’ by Us a A. “Qb‘- ‘ ~ ‘ t I ‘4‘ .‘U“'0 D 'L‘t‘aCal I mag] Q '1 He 3‘ i‘d ',C ‘50310. . t.‘ polltl \ 5‘ x payoffs are TN 9 rSQf. .\ bac- .§. .; If ' ‘aq. gr‘ uh potential clusters on the criterion of the largest average within-cluster similarity using intercorrelations for all pairs in the cluster.38 This clustering technique was used primarily to determine if the clusters produced by the largest within-cluster similarity criterion would resemble the factors produced by the factor analysis. This tech- nique also provided a systematic record of the sequence in which each variable joined (was absorbed or included) a particular cluster. This perspective is lacking in the factor analysis and was occasionally of aid in the interpretive phase. This has been a resume of the computer-dependent routines used in this research. Description of these computer methods have been brief and often lacking in great detail. An effbrt has been made, however, to point out a number of useful sources of additional discussion in order to minimize the liabilities of brevity. D. Socio-Political Analysis The empirically defined dimensions produced by the various computer operations provided an extremely rare Opportunity to examine the rela- tionships between the justices' decisional behavior and their social ‘background (socio-political) characteristics. The literature indicates 'that minimal payoffs are likely from this kind of endeavor, but the great strength of the empirical analysis of behavior made even a low-probability- of success effort worth undertaking. A major handicap in any attempt to undertake an examination of the relationships of background and behavior is the insufficiency of back- ground data. Even an extremely rigorous behavioral analysis cannot com- pensate entirely for this deficiency. The research essentially finds himself limited to a very small number of gross variables for which data (‘ . .pu . .‘a a I .c a an»... ”9‘ .I ' '2 23:57.22“ I l 1 I "' I’au {a .. "Va-ice. "-1 ‘90. 3" “0 '04.... ‘ .h 5 PA 0* 5“ I ‘ a.) I‘m‘lc‘. m ...Ob‘f 1:2": ‘3 a: a: ‘ I. ‘5. ~ y '1 . é“ , v 9Q m 1“: . ' . ‘ Q n “\- ‘ 'I C." ‘ 3.. 1: ‘ 3.5. 145 are available. The problem becomes more crucial when dealing with the Supreme Court because of its small size. Compounding this situation is the tendency characteristic of previous social background efforts to deal with decisional behavior in a correspondingly unrefined and gross fashion. This latter shortcoming, of course, has been overcome here. The socio-political data was obtained primarily from the body of data collected by John R. Schmidhauser.39 In addition, an effort was made to obtain information from such sources as the Who's Who in America, the Directory of American Jugggg, and the New York Times. The limited number of biographies written about several of the Stone Court justices were also consulted. The Schmidhauser data, however, were usually the most satisfactory in terms of covering all eleven of the Stone Court members. The socio—political variables used in this research were determined by availability of data across the Court. Nine such variables were ulti- mately used - political party affiliation, reputation as a frequent dis- senter (Zobell and Evans index), previous active political experience or party offices held, size of town or city of birth, region in which the justice was raised, academic standing of the institution from which the justices‘ legal training was received (Schmidhauser classification in- cluded apprenticeship, average standing, or high academic standing), religious affiliation (again using the Schmidhauser typology of high, intermediate or low social status), ethnic background (nationality), and type of lawyers primarily associated with prior to appointment. All of these data were divided into two or three classificatory groups for the analysis and are presented in summary form at the end of Chapter Three. .Each of the respective categories was compared using the scale ranks and scale scores as the measures used in the application of various a an .0 . .- K 4 l l .h-..vav‘4 ”g. ‘ .‘ ‘ ""‘07'. Y: n. . 1 ‘I -. ..-e: ) he ’I‘ “5 mi v“ ‘4 'I‘Ef‘: Q.- ‘3‘ :" '\‘§=qv - V .I ‘. I.“ "a k , o‘ {a ' i ‘O m. ‘ a.‘ \. o‘ \ I. . ..‘e ‘1 ".\2\ ‘ a a, ‘.‘ a.: h6 statistical tests of significance. A scale score is a numerical value which has a range of zero to one.ho Each justice's votes from each of the scales was translated into a scale score by determining each respon- dent'sscale position (on which rank assignments were also based) and computing the proportion of total reaponses to those positive responses up to the break-point of the respondent. Justices who did not vote in a sufficient number of cases to provide a clear break-point were given positive votes through half of the non-participations although no more than three positive votes were ever placed. No scale score was used for those justice's whose participations were so infrequently as to produce gaps of greater than six cases. Both parametric and nonparametric tests of significance were employed during the analysis. First, the differences between and among the variable cells were tested for the significance of differences by means of the non- parametric chi-square test.’41 The scale scores were dichotomized into "high" and "low" categories by using the mean dimension scale scores as the break-point. Contigency tables were constructed, and the chi-square computed. The chi-square is a test which determines the significance of differences between two or more variables (or groups) when the data con- sist of frequencies in discrete categories.h2 A contingency coefficient was calculated for each of the tables subsequent to the computation of the chi-square. A contingency coefficient is a measure of association which is stated in terms of the chi-square quantity.)43 One of the limita- tions of the contingency coefficient is that it cannot be interpreted as having the same numerical value as other coefficients of correlation. Rather, the contingency coefficient is unique; it has an upper limit which is a function of the number of categories in the particular table.1*h A parametric test of significance was employed upon completion of h? the nonparametric tests. A mean of the scale scores for each category of a particular variable was obtained for each of the dimensions using each scale as a separate measure. The t-technique for comparing the difference between two independent means of small samples was usedJ‘S There clearly is doubt concerning the meeting of the assumptions of the t-technique, particularly the assumptions of distribution normality and homogeneity of variance. The effects of assumption violations with the t-technique, however, are minimal because of the "robustness" of the t-test. The robustness claim is based upon empirical examinations of the effects of the t-test assumption violations conducted by C.A. Bonneau and others who found that even extensive or extreme violations, e.g., variance differences of three and four times or highly skewed distribu- tions, do not produce unreliable test resultsJ‘6 The findings of the t-test on differences of scale score means were checked by re-calculating the t-test after substituting mean scale ranks for scale score means. This was done not only to check the substantive findings of the initial t-tests, but also to examine any differences which might result from changing the base data. Finally, sums of squares were computed for the larger distributions and used in the calculation of F-tests.h7 An equivalence of the F-value and the square of the value produced by the t-test was the hoped for result. The two values should be identical because when testing the between groups variance for the two groups in the analysis of variance or F-test, the sampling distri- bution of F becomes the same as that for t2 given the use of the between groups variance in the numerator of the computational formula. In other words, the t-test is a special case of the F-test when N1 - 1.1‘8 The primary purpose for computing this test was to check the t-tests as sev- eral of the distributions to which the t-test was applied were 1:8 substantially larger than distributions upon which the t-test is most commonly'used. E. Cluster-Bloc Analysis The empirically defined dimensions also have potential value with respect to bloc analysis. The bloc analytic effort was also suggested because of the opportunity for direct comparison with the findings of Pritchett's bloc analysis covering these same five terms.h9 The work of Pritchett, however, focused upon the Court's voting patterns on a termeby-term basis, and when consideration was given to specific portions of the universe of cases, the definition of groups of cases was deter- mined on the basis of substantive content of the cases categorically. The entire basis of substantive focus of Pritchett's bloc analysis was issue-oriented as Opposed to decision of vote-oriented. Blocs were constructed in the current research for each of the two empirically defined dimensions. This is a substantial departure from the method used by Pritchett. There are several other methodological differences in the bloc analysis technique used in this research and that used by Pritchett. The main differences are outlined below. First, all the cases on which the Court divided for which a formal opinion was written were included in the matrix in the construction of each interagreement matrix. The practice excluded from consideration the per curiam decisions and memorandum decisions. Second, each decision was considered to be the basic unit rather than the formal Opinion. Frequently the Court includes or disposes Of several cases with a single opinion. Nevertheless, the members of Court vote separately on each component case. Hence, each vote cast requires its designation as a separate unit or case in the construction of the bloc matrices. 4" at ‘o.’ A. c".'v. -.' . ‘ » -$.. 0 "4 O. o ”I. I ..~. h a ‘0- - v u I h9 Pritchett, given his issue orientation, counted each Opinion only by reasoning that consideration Of multiple cases as separate entities would distort the bloc interagreement frequencies and ratios. Similarly, single dissents in such multiple cases were considered in the current research as separate dissenting votes. The main rationale for these decisions being considered separately is the same as that used in choos- ing to consider them separately in the construction Of the Guttman scales. Since each case represents a separate vote, and since each justice can theoretically vote differently on each of these component cases, attitude influences are reflected in each action. The actual matrices of the blocs of the respective dimensions are composed of both frequencies and ratios of interagreement. For each dyad or pair of justices, frequencies were determined and ratios computed by dividing the frequency of identical voting by the total number of shared participations. This particular techniques allows comparability of pairs to be achieved despite partial or incomplete service for some justices across the entire five-year period. It also minimizes any ef- fect of missing data from the construction of the blocs. Frequencies of interagreement were retained to reflect variance in ratio bases. The actual bloc construction was done by selecting pairs with the highest ratios of interagreement and considering all other justices as paired with those selected initially. The blocs are ultimately defined by means of the average of interagreement ratios of those justices included. Schubert suggests a bloc whose average interagreement is above .700 is high. This average of interagreement ratios is termed the Index of Inter- agreement.5O l. 2. 8. 10. 11. 12. 13. 1h. 15. 16. FOOTNOTES Rokeach, Milton, "The Nature Of Attitudes," in International Encyclo- dia of the Social Sciences, New York: Macmillan, 1968. Louis Guttman describes his own method in Samuel A. Stouffer, et. a1., Measurement and Prediction, New York: John Wiley & Sons, 1950, chap 3. Cumulative scaling, Guttman scaling, scalogram analysis, etc., all refer to the same process although sometimes the generic term attitude scaling is also substituted. The latter is inappro- priate as cumulative scaling is but one of a wide variety of scaling methods used in various attitude measurement endeavors. Discussion Of these methods as well as the Guttman technique specifically can be found in a wide number of works, but some of the most commonly cited titles are: Warren S. Torgerson, Theory_and Methods of Scal- in , New York: John Wiley & Sons, 1958, discussion of the Guttman cumulative technique on pp. 307-36; Allen L. Edwards, Techniques of Attitude Scale Construction, New York: Appleton-CenturyJCrofts, Inc., I957, Chapter 7; Lee F. Anderson, Meredith W. Watts, and Allen R. Wilcox, Legislative Roll-Call Analysis, Evanston, Illinois: Northwestern University Press, l96o, Chapter 6; and M. Shaw and J. Wright, Scales for the Measurement of Attitudes, New York: MGraW-Hill , 1967 e The titles listed in footnote 2 all discuss reproducibility. Guttman, Op. cit., p. 77. Spaeth, Haro ., and David J. Peterson, "The Analysis and Inter- pretation Of Dimensionality: The Case Of Civil Liberties Decision Making," Midwest Journal Of Political Science, XV, August 1971. Spaeth, Harold"J., "Unidimensionality and Item Invariance in Judi- cial Scaling," Behavioral Science, X, July 1965, pp. 290-30h. Glendon Schubert, for example, was guilty of this practice in all of his early work and continued to do so through completion Of 222 %udicial Mind. d'uards, 0 e Cite, pp. 191-930 Schubert, Sudicial Mind, pp. “(9-80. Menzel, Herbert, "A New for Scalogram Analysis,“ Public 0 inion Quarterl, XVII, 1953, pp. 268-80. chubert, Op. ci ., p. 81. The scales constructed later were Administrative Deference, Appeals: State to Federal, Appeals: Substantive Review, Supremacy, War Powers, Delegation Of Legislative Power, Statutory Construction: Criminal, Statutory Construction: Remedies, and Collaboration. Fifty-one sets had been created initially. 320 US h30. 327 US 82. Kendall, Maurice, Rank Correlation Methods, New York: Hefner, 1955, and Siegel, Op. cit., pp. 215-22. A complete discuss on 0 he Spearman rho coefficient and correla- tions generally can be found in Siegel, Op. cit., pp. 195-2h0; Andrew Baggaley, Intermediate Correlational Methods, New YOrk: John Wiley & Sons, l96h; and Quinn McNamar, Ps ThOlo icaI Statistics, third edi- tion, New York: John Wiley & Sons, 198%, see sepecially chapters seven and sight on parametric correlations and chapter twelve on the non- parametrics. So .nm—uru ...- .... so .11... r: Isa ...u..» 7. el. 7. a... 8. :oo It pm) :4 ...... “. u-.§f.. 9 . .ma ...o.\.y. mi .Vm. ' - ..uo. u...u,A - ' - - w... ..wo.~........... ~... 17. 18. 19. 20. 21. 22. 23. 2h. 25. 26. 27. 28. 29. 30. 31. 32. 33- 51 All computer analyses were conducted at the Michigan State University facility on a CDC 3600. All routines used were developed specifically for that facility and were made available through the Computer Insti- tute for Social Science Research at Michigan State University. MOrris, John, Nonparametric Statistics, and Rank Correlation Coef- ficients, TechnicaIVReports #80 and #87, respectively, East Lansing, Michigan: Computer Institute for Social Science Research, Michigan State University. General discussions of factor analysis can be found in numerous titles such as Kerlinger, Fred N., FOundations of Behavioral Research, New York: Holt, Rinehart & Winston, 1965, Chapter 36; R.J. Rummel, "Understanding Factor Analysis," Journal of Conflictigesolution, XI, no. h, pp. hhh-BO; Andrew Baggaley, O . cit.; and J.P. Guilford, Ppychometric Methods, New York: McGraw-Hill, 195h, Chapter 16. RummEI, Op. cit., pp. th-Sl. Kerlinger, op. cit., pp. 652-5h. Kerlinger, Op. cit., p. 657. Kerlinger, Op. cit., pp. 661-65. Kerlinger, Op. cit., pp. 667-70. Kerlinger, o . c ., pp. 669-70; Rummel, o . cit., pp. h7S-77. More information on this point can be found in Raymona Cattell, "Factor Analysis," Biometrics, 21, 1965; and J.P. Guilford, op. cit., pp. 500-22. Baggaley, O . cit., p. 162. Harman, Harry, Msaern Factor Analysis, second edition, Chicago: Uni- versity of Chicago Press, 1968, p. 301. Ibid. Williams, A., Factor A: Principal Components and Orthogppal Rotations, Technical Report #hO, East Lansing, Michigan: Computer Institute for Social Science Research, Michigan State University. Ibid. ‘Gfitfiory, Scott B., Harold J. Spaeth, and Stuart Thomas, FASCALE, Tech- nical Report #29, East Lansing, Michigan: Computer Institute for Social Science Research, Michigan State University. Guthery, Scott B., and Harold Spaeth, "FASCALE: A Fortran IV Multi- dimensional Scaling and Factor Analysis Program," Behavioral Science, 13, 1968, p. h26. Any of the following titles will provide satisfactory discussion of multidimensional scaling. Guttman, Louis, "A General Nonmetric Technique for Finding the Smallest Coordinate Space for Configuration of Points," Psychometrica, 33, 1968, pp. h69-506; Lingoes and Guttman, "Nonmetric Factor Analysis: A Rank Reducing Alternative to Linear Factor Analysis," Multivariate Behavioral Research, 2, 1967, pp. h85- 505; J.B. Kruskal,-“Nonmetric UnidimensionaISEZIIng: A Numerical Method," Psychometrica, 29, 196h, pp. 115-29, and "Multidimensional Scaling by Optimizing Goodness of Fit to a Nonmetric Hypothesis," Psyphometrica, 29, l96h, pp. 1-27; and Roger N. Shepard, "The Anal- ys s 0 Pro mities: Multidimensional Scaling with an Unknown Dis- tance Function," Psychometrica, 27, 1962, pp. 125-39 and 219-h6. Mere general discussions can be found in such titles as Warren S. Torgerson, Theory and Methods of Scali , New YOrk: John Wiley & Sons, 1958), pp. 2&7-97; J.P. Guil O , o . cit., pp. 2h6-Sl; James S. Coleman, "Multidimensional Scale Analysis, merican Journal of . SOCiOIOEE, 63, 1957, pp. 253-63; James C. Lingoes, “Multiple SEalo- gram Ana ysis: A Set-Theoretic Model for Analyzing Dichotomous Items," 3h. 35. 36. 37- 38. 39. to. uz. h3- bh. h5. h6. 52 Educational and Psychological Measurement, 23, 1963, pp. 501-23. Several other sources are available, but are less helpful. Spaeth, Harold J., and Scott B. Guthery, "The Use and Utility of the MOnotone Criterion in Multidimensional Scaling," Multivariate Behavioral Research, h, 1969, pp. 501-15. Ibid. Some of the clustering or interagreement methods developed by MCQuitty can be found in the following selections, "Typal Analysis," Educational and Psychological Measurement, 21, 1961, pp. 677-96; 1TRank Order Typal Analysis,fiiEducational and Psychological Measure- ment, 23, 1963, pp. 55-61; "Single and Multiple Hierarchical Clas- sification by Reciprocal Pairs and Rank Order Types," Educational and Psychological Measurement, 26, 1966, pp. 253-65; "Improved Hierarchical Syndrome Analysis of Discrete and Continuous Data," Educational and Psychological Measurement, 26, 1966, pp. 577-82; "Similarity.Ana1ysis by Reciprocal Pairs for Discrete and Continuous Data," Educational and Psychological Measuremepp, 26, 1966, pp. 825- 31; "A Mutual Development of Some Typological Theories and Some Pattern Analytic Methods," Educational and P5 chological Measurement, 27, 1967, pp. 2l-h6; and "A Novel ApplicatiOn of the Coefficient of Correlation in the Isolation of both Typal and Dimensional Constructs," Educational and Psychological Measurement, 27, 1967, pp. 591-99. Price, Leighton A., "Hierarchical Clustering Based on a Criterion Of Largest Average Within-Cluster Similarity," Research Report Of the Computer Institute for Social Science Research, East Lansing, Michi- gan: Michigan State University. The report is a revised version of a paper presented at the Annual Meetings of the Midwestern Society of Multivariate Experimental Psychology held in Chicago, Illinois in May 1968 0 Price, O . cit., p. 2. Schmidhauser, ohn R., "The Justices of the Supreme Court: A Collec- tive Portrait," Midwest Journal of Political Science, III, February 1959, pp. 1-57. -The data were made available through the Inter-Uni- versity Consortium for Political Research at the University of Michigan in Ann Arbor. Normally scale scores have a range of -1.00 to +1.00, but the range was modified for the purposes Of this research in order to eliminate negative values. . A systematic discussion pf the chi-square technique can be found in Siegel, OE. Cite, pp. 10 '11; Hubert BlBIOCk, 0 e Cite, pp. 212-20; N.M. Downie and R.W. heath, Op. cit., pp. 160-75; or any standard statistics text. Ibid. . Siegel, o . cit., pp. 196-202; McNemar, Op. cit., pp. 196-202; and Downie ans Heath, 0 . cit., pp. 210-12. Ibid. T-technique discussions can be found in McNemar, Op. cit., pp. 102- 08; Downie and Heath, op. cit., pp. 138-hl; Blalock, O . cit., pp. lhh-h9; or Guenther, o . cit., pp. 22-25. McNemar, o . cit., pp. 1 . egardless of the seeming conclu- siveness O neau's findings (as they apply to the two-tailed t-test as used in this research), McNemar suggests the incorporation of a more rigorous or stringent level of significance where there is any uncertainty about meeting all of the test assumptions when the samples are as small as they normally are when the t-test is appropriate. See McNemar generally on assumptions connected to parametric tests h7. h8. h9. 50. 53 characteristically. See MCNemar, Op. cit., pp. 252-69; Downie and Heath, O . cit., pp. 176-82; relatively standard statistics text. MCNemar, o . cit., pp. 267-69; Downie and Heath, 0 . cit., pp. 180- 81; or Guenther, o . cit., pp. h6-h7. Pritchett, The Roosevelt Court and Civil Liberties and the Vinson Court, loo. cit. The Roosevelt Court treats the 193I-I9h6 Terms, But focuses on the 1951-56 Terms which constitute the period of the Roosevelt-appointed Court. Schubert, Quantitative Analysis of Judicial Behavior, p. 91. 5h CHAPTER THREE - THE STONE COURT AND ITS DECISIONAL OUTPUT It is now apprOpriate - having framed the research problem and objectives, discussed the theoretical foundations, and described the methodological considerations - that attention be turned to the data, and the members Of the Stone Court. This chapter will summarize the historical context from which the cases were drawn, outline briefly the categories of cases, generally characterize the substantive content of the scale-sets, and briefly introduce the eleven justices who sat on the Supreme Court during the 19h1-19h5 Terms. A. The Histroical Context and the Cases The classification of the cases decided by the Stone Court was aimed at maximum refinement Of the categories. Nevertheless, several broad areas of policy making were suggested by various historical treatments of this period. Pritchett, for example, separates his dis- cussion of voting alignments into five substantive areas while Kelly and Harbison and Carl Brent Swisher seem to focus upon three fundamental policy areas. These treatments were generally suggestive of specific categories which were subsequently develOped from the many individual cases. Mbst Observers agree that a relatively discrete group Of cases in- volving individual liberties seemed to emerge from the decisions of the Stone Court. Discussion of the civil liberties area was generally sep- arated into groups of cases dealing with the First Amendment and those :\\ 55 cases involving with the procedural rights of the accused.1 Pritchett, however, framed his discussion of the civil liberties decisions in the context of judicial supremacy.2 This notion of judicial power is used in a much broader manner in the classification of cases in the current research. The second area in which there was consensus in the characterization of the policy output of the Stone Court involved decisions which examined generally the nature of governmental power with specific focus on the powers of Congress to regulate the economy. The component parts of this policy area are virtually unlimited. Swisher, for example, considered the question simply as a matter of expanding governmental control as such. He directed his description toward the Specific commodities or other subjects brought under governmental control through the Court's support of a broadened view Of Congress to regulate by means of the commerce clause.3 Kelly and Harbison considered the expansion of federal regulation primarily in terms of the federal-state relationship.h Pritchett, mean- while, examined economic regulation from two perspectives - the supremacy of Congress and their general powers to regulate in the economic field, and the creation and eventual sanction Of the administrative machinery used in the implementation of this control. Pritchett also looked at the Court's reaponse to issues dealing with the status and growth of organized labor.5 Finally, there were those policy areas which related directly to the Second WOrld'War. Independent of the question of whether psychologically distinct attitudes were involved, there was a group of cases at a policy level dealing with governmental powers in an emergency situation, e.g., the powers of the President, and the powers to create quasi-legislative .y‘ “'1 v.. 33 ‘- 56 amiss to administer particular functions such as price controls and mmmodity rationing.6 Regardless Of which interpretation one opts, fines main areas seem constant: civil liberties, the war, and economic regulation. The Stone Court rendered h98 non-unanimous decisions with a full Opinion during the l9hl-19h5 Terms. This total number of cases includes a separate count for all multiple citation situations - each case in which a vote was taken independent of whether collective consideration was given and only a single Opinion written. The h98 cases were classified in the manner described in Chapter Two and were based upon the attitude object (A0) and attitude situation (AS) notion discussed in Chapter One. Sixty sets were produced from the total number of cases, and h85 cases (97.h%) were ultimately placed into at least one of the Guttman scales. Appendices A-D contain a chronological listing Of the non-unanimous decisions of the Stone Court, the attitude object and attitude situation, the Guttman scales, and the scale speci- fications (set size, Coefficient of Reproducibility, Minimal Marginal Reproducibility, and Coefficient of Scalability), respectively. The sixty scale-sets which were generated from the universe of cases will be described within three very general substantive headings. The first is civil liberties, the second is economic regulation, and the third judicial power. Each of these broad headings has numerous compo- nent parts. The individual scale-sets will be identified by set title. Some of the sets will be discussed more fully as the titles of these sets are not as precisely reflective of the content of the cases included therein. Some sets, such as Coerced Confession or Patents and Copyrights, need no additional elaboration. Others, like the distinctions between the several federal taxation or federal-state relations sets, however, do 57 need additional comment. The civil liberties sets have a procedural component as well as a First Amendment basis. The procedural sets deal with rights of the accused and stem generally from the Fourth through Eighth Amendments of the Bill of Rights. The procedural sets include Coerced Confession, Col- laboration, Right to Counsel, Criminal Liability, Double JeOpardy, Due Process, Sufficiency Of Evidence, Search and Seizure, Statutory Construc- tion: Criminal, and Trials: Prejudicial Errors. The Collaboration, Criminal Liability and Statutory Construction: Criminal sets are similar in case content. All involve criminal defen- dants as the A0. The Statutory Construction set contains cases which focus specifically upon criminal acts which have been prosecribed by legislation. The cases involve a general construction of legislation dealing with criminal activity. The Criminal Liability set includes cases in which individual actions are reviewed to determine if criminal liabil- ity does exist and whether a defendant was justifiably indicted. This set contains cases dealing with a particular kind of statutory construc- tion. The Collaboration set is even more Specific. It contains cases in which the issue is the legal requisites of criminal prosecution and con- viction for conspiracy (or collaboration) to commit a particular criminal act. In this set, the nature of the criminal act itself is not at issue. Rather, the main focus is upon the question Of construction and/or deter- mination of criminal conspiracy. The Sufficiency Of Evidence set has a due process character, but differs from the Due Process set in its level of refinement. The central consideration in the Sufficiency cases is judicial review of the adequacy of evidence used in securing a criminal conviction or liability judgment. The Due Process set cases are much more general as an aggregate. These n .. a .0 .‘ how '- in 'aa I‘: O "v~. \. u 1'. - . ‘e .. at...“ - . ...u~ . "‘1“ ”- .." 3-. 'n. I O '. I 'a -_ -. v .. ‘a 58 cases involve both civil and criminal litigants and are not defined in terms of a specific procedural point such as sufficiency of evidence, but covers proper legal procedures totally - due process in the broadest terms. The remainder Of the civil liberties sets are varied in content. There are several which have their genesis in the First Amendment guar- antees such as Religion, Freedom of Speech and Press. Others relate to these guarantees in a somewhat narrower fashion. Among such sets are Radio Regulation (a corollary of free speech and press), Selective Ser- vice, and Naturalization-Denaturalization. Finally, there are two sets, Indian Property and Indian Treaties, which deal with treatment Of the Indians by the federal government. These cases have an equal protection character. There is also an Equal Protection set as such, but it does not have an exclusively racial orientation. The second general category of sets comes under the gross rubric of economic regulation. There are four basic groupings under this main heading. The first is general business regulation. It includes such sets as Antitrust, Bankruptcy, Commission Regulation of Rates(and/or standards of competition), Contracts, Delegation of Legislative Power, Eminent Domain, Fiscal Liability, Interstate Commerce Commission: Public Neces- sity and Convenience Certificate Applications, Patents and COpyrights, State Commission Regulation, Statutory Construction: Remedies, and Utility Regulation. The Delegation of Legislative waer set is related to two of the other’economic regulation sub-headings. It contains cases in which power was delegated to agencies to regulate business or economic enterprises. It also has a war emergency character. Much of the power delegated to particular agencies in the cases contained in this set are a direct ..‘t .. ...o-d uh - ..‘I r. -o . Q 'I .m- I a ‘1 u.‘ ,,. ‘- § ’H . 4‘ ‘ \d ‘ 59 result of the national emergency. There is also an element of judicial power involved - the degree to which the Supreme Court is willing to defer to such agencies and their substantive decisions. Two other sets have direct and specific connection to the war emergency. The first is the set involving litigation under the Emergency Price Control Act. The second is a set entitled War Powers which contains cases of a similar content, but arising from legislation other than the EPCA. These sets specifically deal with deference to the emergency, and the policy choices of Congress. The second economic regulation group involves organized labor. Among the labor sets are Fair Labor Standards Act: Contracts, Fair Labor Stan- dards Act: Coverage, Federal Employers' Liability Act, National Labor Relations Act, Personal Injury Liability, Railway Labor Act, Closed Shop, Bargaining Agents, and Solicitation. The two sets of cases arising under the Fair Labor Standards Act have been distinguished previously. The Personal Injury Liability set contains cases which are similar to claims made in the cases of the Fiscal Liability set. The cases in the former set, however, involve fiscal liability for personal injuries as Opposed to property damages or contract defaults which is the general fecus of the latter set. The third economic regulation sub-heading involves federal-state relations. The sets in this group include Commerce Regulation, Policy Conflicts, Taxation Conflicts, National Supremacy, Full Faith and Credit, State Commission Regulation, and State Taxation. The Federal-State: Com- merce set's cases encompass state regulation of foreign (out-of-state) businesses giving the regulation the interstate character. The Policy Conflict set does not incorporate the national supremacy question, but rather*deals with dual regulation by states and the federal government . w-a o. 'N" CI. .07 - . In. V'.a .- \ a N N .v- .. . (IRA .v a tt\‘ ... . .,. _ ... .1" . .m I‘..; . .- J‘". k". .- . .’~ A. I" " 'u 60 in which the field Of regulation is not necessarily pre-empted by one or the other level of government. The Taxation Conflict set is similar, but is confined to taxation of businesses. The Supremacy set contains the pre-emption questions as such in which dual regulation or action is viewed as incompatible and irreconcilable. The final group is federal taxation. While Schubert and others have suggested the possible existence of an independent taxation dimension, it will merely be introduced here with the economic regulation sets. These sets include Claims against the Federal Government, Construction of (federal taxation) Provisions, Income Tax Exemptions, Federal Tax Liability, and Succession and Estate Taxation. The Provision Construction set includes cases dealing exclusively with construction of federal tax provisions for the taxation of personal and/or corporate income. The Exemptions sets has cases litigating claims for exemptions from personal and/or corporate income taxation. These cases require construction of the appropriate provisions of the federal statutes governing taxation. The Liability set is broader in character and includes all remaining federal fiscal claims upon either individuals or businesses. It also includes challenges on constitutional grounds of particular federal taxa- tion liability. The final category of sets are those involving some aspect of judi- cial power. The sets in this group include Administrative Deference, Appeals: State to Federal, Appeals: Substantive Review, Federal Judi- cial Intervention (Comity), Judicial Review of Regulatory Commissions, Supreme Court Jurisdiction, and Military-Civil. Each of these sets in- volves the question of the degree to which the Court is willing to defer to the institutional autonomy and substantive decisions of administrative agencies, lower courts, state courts, or military tribunals. Shifting 61 perspective, these sets involve the degree to which the Court desires to assert review or supervision over the decision making action ofother a- gencies. The Supreme Court Jurisdiction set contains highly technical questions of procedure and jurisdiction. It is not a residual set by any means. Nevertheless, the judicial power consideration can be seen in terms of the degree to which the Court defers on these technical or Obscure points in lieu of making substantive responses on the merits to decisions on appeal from other decision-making bodies. This has been a brief summary of the sixty sets that were construc- ted from the non-unanimous decisions of the Stone Court. Each set will be described more fully in Chapter Four as part of the description of the empirical dimensions found through the various analyses employed in this research. Only thirteen cases could not be fitted into any one Of the sixty scale-sets. Since there are only a relatively few not included, each of the thirteen cases will be summarized below. The summaries will indicate the content of the case as well as the unusual voting configurations. The content of each Of these cases suggested at least one scale-set into which the case might be placed, but the voting pattern was too deviant in terms of scaling criteria to allow inclusion. The cases are listed chronologically. 1. Viereok v. United States, 318 US 236. This case involved re- view of a conviction for failure to disclose certain facts by political agents of foreign principals under the Prepoganda Agency Act. The registered foreign agent failed to disclose political activities conducted on his own behalf. Justices Black and Douglas voted to affirm the conviction sustaining the provisions for disclosure while Justices Frankfurter, Jackson, Reed, Roberts, and Stone voted to reverse. Justices Murphy and Rutledge did not participate in the decision. The absence of Murphy and Rutledge was significant in the inability to classify this case as they might have allowed some insights to be seen explaining the responses of Black and Douglas. 2. 3. 5. 7. 62 L.T. Barringer & Company v. United States, 319 US 1. The Court reviewed the dismissal of the suit to set aside an Interstate Commerce Commission order in which the Commission refused to set aside tariffs on cotton which appellee railroads contended were discriminatory. The majority of Frankfurter, Murphy, Jackson Rutledge and Stone voted to uphold the ICC with Black, Douglas, Roberts and Reed voting to reverse. Bowles v. United States, 319 US 33. Review of a conviction for the violation of the Selective Training and Service Act. A 10- cal board did not recognize the draftee's claims as a conscien- tious objector when he appealed to the President. The actual legal question revolved around the erroneous construction Of the statute by the local board concerning the process for appeal and its effects on the draftee. Justices Black, Douglas, Murphy, Frankfurter, Stone, Robert and Rutledge voted against the draftee while Jackson and Reed voted to support his contention. Thomas v. United States, 321 US 19. Review of a petition to set aside an Interstate Commerce Commission order denying a Certifi- cate of Public Necessity and Convenience as a common carrier by a truck line contracted to complete local transportation by a railroad. The question involved in the case focused on the in- dependence of the contracts and contractors from the railroad, and the extent of control exercised over the truck line by the contracting railroad. Justices Frankfurter, Murphy, Reed, Rutledge, and Stone voted to reverse the ICC order with Justices Black, Douglas, and Jackson voting to sustain the ICC denial of the certificate. Prince v. Massachusetts, 321 US 158. Appeal Of a conviction for the violation Of a state statute prohibiting nimors from selling or exercising any type of trade in a street or public place. The violation occurred when a woman willfully allowed a minor to sell religious publications with the defendant basing claims for reversal on grounds of religious freedom and denial of equal pro- tection. A five-judge majority Of Black, Douglas, Reed, Rutledge and Stone voted to reverse the conviction while Justices Frank- furter, Murphy, Jackson and Roberts voting to affirm. Stark v. Nickard, 321 US 288. A suit to enjoin the enforcement Of an order of the Secretary of Agriculture as authorized under the Agricultural Marketing Agreement Act. The specific legal question involved the standing of the plaintiff to initiate a suit against the Cabinet Secretary. Justices Douglas, Murphy, Rutledge, Reed, Roberts, and Stone voted to reverse the dismissal. Justices Black and Frankfurter voted to affirm while Justice Jackson did not participate in the decision. United States v. Ballard, 322 US 78. A case involving a mail fraud conviction for Obtaining money through false representa- tion when the representation was of a religious character. The question of fundamental importance was whether the freedom of religion clause precluded consideration of the truth and/or reasonableness of religious beliefs or doctrines. Justices Stone, Jackson, Frankfurter, and Roberts voted to sustain the conviction while a five-man majority of Black, Douglas, Murphy, Rutledge, and Reed voting to reverse. 9. 10. 11 & 12. 13. 63 Northwest Airlines v. Minnesota, 322 US 292. The case reviewed a judgment in favor Of the State of Minnesota in an action brought to collect personal property taxes assessed on aircraft operated in interstate commerce and not exclusively located within the State. Justices Black, Douglas, Frankfurter, Jackson and Murphy voted to sustain the State of Minnesota while Jus- tices Reed, Roberts, Rutledge, and Stone voted to reverse the lower court judgment. United States v. Johnson, 323 US 273. An appeal from a judgment quashing an indictment for want ot jurisdiction charging viola- tions of the Federal Denture Act which prohibits the transpor- tation of dentures, casts, etc., interstate. The Specific legal question was one of venue for the prosecution of criminal viola- tions and considerations of the power of Congress to make any Federal court an apprOpriate court to try such cases. Justices Black, Jackson, Frankfurter, Murphy and Roberts voted to affirm quashing the indictment while Douglas, Reed, Rutledge, and Stone voted to sustain the original indictment. United States v. Townsley, 323 us 557. Case in which a judgment awarding overtime pay to Canal Zone employees whose salaries were fixed on a monthly basis was reviewed. The Independent Offices Appropriation Act re-established the salary level and the legal issue involved in the case focused on its applicability to the Canal Zone dredge operators. A majority Of Black, Douglas, Murphy, Frankfurter, Reed, and Roberts voted in favor of the over- time award while Jackson, Rutledge and Stone voted against the 8W8 rd 0 United States v. Joseph A. Holpuch, 328 us 23h (Nos. 197 and 696). These cases involved the review Of a government construction con- tract and a judgment in favor of the plaintiff. The central issue was whether a contractor's failure to exhaust administrative ap- peal provisions of the government construction contract precludes the contractee from bringing suit in the Court of Claims to re- cover damages. Justices Black, Burton, Murphy, Reed, and Stone voted to reverse the lower court and sustain the position of the government while Justices Douglas, Frankfurter, and Rutledge voted to sustain the judgment on behalf of the plaintiff. Justice Jack- son did not participate in the decision. Bihn v. United States, 328 US 633. Review of a conviction fer conspiracy to violate the statutory provisions governing gasoline rationing. The legal question revolved around the admissability of declarations made by co-conspirators as well as prejudicial instructions by the trial judge to the jury. Justices Douglas, Frankfurter, Murphy, Rutledge, and Stone voted to reverse the conviction. Justices Black, Burton and Reed voted to affirm while Justice Jackson did not participate. The sixty scale-sets, and the cases from which they were generated, represent the heart of the research. The Guttman scales were constructed fromithe categories of cases described above. The scale ranks and scale scores from the Guttman scales, in turn, constitute the raw input for the various computer-dependent analyses. I. " -.. '0. ..‘ '-.. ~— 0 ...‘ '4. -... ‘ v "t. .. . .b . "vs «1 6A B. The Stone Court Eleven justices sat on the Supreme Court during the five terms ex- amined in this research. The Chief Justice throughout the period was Harlan Fiske Stone. The ten Associate Justices sitting during these terms were Hugo L. Black, William 0. Douglas, Felix Frankfurter, Robert H. Jackson, Stanley Reed, Frank Murphy, Owen J. Roberts, Harold Burton, James F. Byrnes, and Wiley B. Rutledge. The following paragraphs will briefly introduce each Of these Stone Court members. An overall histor- ical perspective Of the Court's membership can be seen in Table 2. This table contains a listing Of the occupants of each of the nine Supreme Court seats, and provides graphically the sequence of personnel changes on the Supreme Court during the last fifty years. Table 3 summarizes the ages of the eleven Stone Court members at the time of their appoint- ment to the Supreme Court and their ages during the five terms in which Stone was Chief Justice. Chief Justice Stone was the only carry-over member from the pro-1937 Court with the exception of Associate Justice Roberts. Stone, a Repub- lican, was first appointed to the Supreme Court in 1925 by President Coolidge. Stone was a New Englander by birth, and he remained in that region through his college years at Amherst. He secured his law degree from Columbia where he remained as a professor and later Dean of the School of Law. Stone maintained a private practice in New YOrk City while at Columbia, but at the time of his appointment, Stone has no public Office or judicial experience.7 Stone, at the time of his appointment, was United States Attorney General. He had been selected for that position in l92h by President Coolidge. 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N T. V W. 0 0 L U m m n w .o n... mid m. m. a w m w w u m I. 9 O n HooHnnEnp pp; .23.: ooHonthoRnSoH :op 8:22.352on 83595 222.538 «H as: 102 TABLE 13 Governmental Regulation Mean Within-Dimension Correlations 29 Variables 23 Variables* Commission Regulation: Rates .629 .690 Eminent Domain .681 .736 Emergency Price Control Act .510 .567 Federal Taxation: Succession .560 .595 Federal Employers' Liab Act .698 .7h5 Fair Labor Stan Act: Contract .709 .76h Due Process .5h3 .587 Jury Trial .635 .6h9 Injury Liability .6h5 .673 Military-Civilian .h92 .532 Natural-Denaturalization .598 .610 Nat'l Labor Relations Act .693 .7h9 Speech and Press .636 .685 Unions: Bargaining Agents .570 .609 Unions: Solicitation .6h0 .695 Utility Regulation .709 .750 Statutory Const: Remedies .613 .665 Appeals: State to Federal .525 .Shh Statutory Const: Criminal .599 .637 Administrative Deference .688 .737 Federal-State: Supremacy .676 .719 Legislative Power Delegation .571 .6lh Patents and Copyrights .623 .681 Comity .h66 Supreme Court Jurisdiction .h62 Unions: Closed Shop .h72 Indian Pr0perty .h88 Evidence: Sufficiency .362 Collaboration .hhl mu CORRELATION .581; .662 * Excluding Comity, Supreme Court Jurisdiction, Unions: Closed Shop, Indian Property, Evidence: Sufficiency, and Collaboration 103 TABLE 1h ADMINISTRATIVE OVERSIGHT DIMENSION BANKS Blk Bur Byr Dou Frk Jac Mur Ree Rob Rut Sto Bankruptcy 1 x x 2 9: 73: 3 51: 9 h 73: Coer Confess 135 x x 1!: 3 8% h 635 82g 5 635 Jud Rev: Conn. 135 x 7 3 S 9 1!: h 10 6 8 Fed Tax: Liab l 6 7x 3 2 7 5 8 10 h 9 Radio Reg he x x l 2 6 8 3 9 17!; 7 Un: Coll Berg 2?: x x 215 6 72g 23g 23:; 9 5 735 Stat Con: Res 33: x 5 2 6 7!: 1 735 10 345 9 App: Sub Rev .E% :x .x 1%; 7 8 h 6 9 3 6 Claims 1 x h 10 3 6 5 8 9 2 7 Fed-St: Comm. 2 x 8 l 6 10 3 5 h 9 7 Full Faith 1 x x 3 6 9 h 6 8 2 6 m RANK 1.9 6.0 6.0 2.1 11.7 7.8 3.3 5.6 9.2 3.9 7.3 Confession, and Federal Taxation: Liability - load above the .700 minimum through most of the solutions. Judicial Review: Conissions loads in the .600-.699 range. These four sets are Unions: Bargaining Agents, Statutory Construction: Remedies (both sets are also located on the Governmental Regulation dimension), Appeals: Substantive Review, and Full Faith and Credit (these latter two sets are found on the Judicial Power dimension as well). The three marginally linked sets are Fiscal Claims upon the Federal. Government, Radio Regulation and Federal-State: Commerce. Again, sufficiently deviant behavior on the part of a Stone Court Justice or pair of Justices provided the rationale for retaining the nrginal relationship of these sets to the remaining Administrative Over- sight sets. The scale ranks of the dimension components are presented in Table 11:. The most excessive deviation found from an inspection of the mean dimension ranks and the individual scale ranks Justice Douglas and the Fiscal Claims set. Douglas's average within-dimension rank is 2.8. Be ranks 10th, however, in the Claims scale. By excluding Douglas, the correlation between Claims and Federal Taxation: Liability balloons to .929 (significant to .0002) from an original coefficient of .592. The 10!: TABLE 15 Administrative Oversight Within-Dimension Tau Inter-Correlation Matrix (ll Variables) fl :3 E :3" P Q 0 O 7' <3 :5 5 8 b. 7 3 g o o ‘3 o 2 2 =3 l a g t m g a '3 t 8 3 a " 8 a 3 a R g .. ° 2 3" 3 Claims on Covernwent 377 o 8 n3 .. ‘3 ‘3 .... ‘E’ Coerced Confession 806 321: ° 1: 3% 5 5 i 79 Judicial Review: Comns 806 209 758 5} v "‘ '3 :3 5 Federal-State: Commerce 1.57 225 7:93 552 .2 '8 "‘ n9. 8 Fed Taxation: Liability 686 592 725 551 222 ‘“ o ’6 b Full Faith & Credit 776 383 697 606 377 551 3 3 Radio Regulation 377 057 1:71 1:12 it: 1:79 235 ‘3 :3 Unions: Bargaining Agents 828 251 61h 873 hbh h6h 582 h39 :3 '3 Stat Const: Remedies 765 368 627 659 205 572 508 31:8 733 :3 Appeals: Substantive Rev 81:1 286 677 736 1:23 592 82!: 31:3 722 609 improvement with each of the other sets is almost as great. Drapping Murphy from consideration of the Radio Regulation scale and the exclusion of the Roberts-Rutledge tandem from the calculation of correlations be- tween the Federal-State: Commerce set and the other Administrative Over- sight scales also produced higher associations. The matrix of tau correlation coefficients between each of the eleven Administrative Oversight variables is provided in Table 15. The relative tightness of the nuclear components can be readily seen from the inter-correlation matrix. The un-revised coefficients of the three marginal sets are extremely low. The effects of these low coef- ficients upon the average within-dimension correlation can be most graphically seen.when one compares the average within-dimension cor- relations including and then excluding these marginal un-changed set rank correlations. Table 16 provides this information. The within- 105 TABLE 16 Administrative Oversight Mean Within-Dimension Correlations 11 Variables 8 Variables* Bankruptcy .672 .787 Coerced Confession .619 .798 Judicial Reviews: Comns .616 .713 Federal Taxation: Liability' .5h3 .592 mu Faith and Credit .551: .689 Unions: Bargaining Agents .597 .688 Statutory Const: Remedies .539 .639 Appeals: Substantive Review .605 . Claims on Government .307 Federal-State: Commerce .356 Radio Regulation .330 m CORRELATION .522 .698 i-Excluding Claims on Government, Federal-State: Comerce, and Radio Regulation dimension mean correlation is .522 for all eleven variables, but increases to .698 when the three marginal sets are excluded. This difference is the most extreme of the three dimensions. Nevertheless, the highly deviant behavior detected within these sets on the part of one of the Justices (Roberts and Rutledge in the case of the Federal-State: Commerce set) suf- ficiently elevates the association of these aarginal sets with the nuclear sets to allow concluding that these three variables ought be considered as meaningful components of the Administrative Oversight dimension. The three dimensions have only been substantively labelled to this point. The main purpose of section.A has been to empirically define and describe the results of the computer-dependent analyses upon the decisional behavior of the Stone Court. Each of the dimensions will be substantively described and interpreted in the following section, and, among other items of concern, the deviations in ranks mentioned above in terms of individual behavior will be considered. Numerous cases feund within 106 the component scales will also be identified and used as descriptively representative of each scale. B. The Substantive Interpretations The composition of the three dimensions has been empirically deter- mined and generally described. This portion of Chapter Four will address the question of the substantive meaning of these empirically defined dimensions. The interpretations were developed by returning to the cases of the component scales of each dimension and extracting the common and relevant content. The substantive relationship of the cases of these scale-sets provide the basis for the aggregate characterisations of the dimensions. The three dimensions are described in broad and general terms as well as through the use of specific illustrative oases. Seeming depar- tures from expectations in variable locations are discussed in addition to individual responses of Stone Court members. Finally, the five sets which.were not dimsnsionally located are considered with some explanations offered regarding their respective unique character. The controlling objective of this section, however, is the substantive description and interpretation of the three empirically produced dimensions. These three dimensions, heretofore only labelled as Judicial Power, Governmental Regulation, and Administrative Oversight, are presented in some detail in an effort to provide an evaluative frasework and substantive meaning fer the three dimensions. Two general comments are appropriate at the outset. First, the Stone Court differs markedly fron its predecessor, the Hughes Court, both ideologically, and in the sense that a single dimension no longer suffices in describing the collective and individual behavior of the 107 Supreme court. Second, the three dimensions which have been identified are related as opposed to being discrete or independent. The Hughes Court period, at least prior to 1937, was clearly uni- dimensional. The question of the government's role relative to the nation's economy dominated that Court's behavior. The well-noted policy turnaround which began after the abortive ”court-packing" attempt also marks the beginning of a flow of more diverse issues through the Judi- ciary. The advent of greater issue variety was bound to produce severe strain with respect to the unidimensional decisional behavior of the Court. This strain is evident in the years of the Stone Court, and it accounts in large part for the non-independence of the three primary dimensions. The Stone Court is, thus, clearly a transition Court, and interpretations of decisional behavior are inherently fussy as a result. The dimensional interrelationships were initially suggested by the results of the factor analyses. Though the analyses were orthogonal, numerous variables loaded on more than one factor. Even where one load- ing was appreciably higher than the others, far from insignificant load- ings were often found on at least one of the other two primary factors. The following interpretations will highlight the areas of substantive overlap as well as point out those areas in which the decisional distinc- tions are more obvious. It may be quite helpful in considering the fol- lowing discussion to develop a perspective based upon the character of behavior of the Hughes Court and the Vinson Court with particular atten- tion directed toward the transition from a clearly unidimensional situation to a situation which is Just as clearly multidimensional.11 B.l. Judicial Power Dimension The most obvious thrust of Stone Court policy-making is found in 108 the area of expanded economic regulation at the national level. The additional national regulation stemming from the demands of the war emergency supplemented the unusually high visibility of this policy area. Concern, however, about the proper role of the Judiciary with respect to the institutional linkages between the Court and other de- cision—naking authority plus the policy priorities themselves seems to provide one of the primary bases of Stone Court behavior. Two sources were highly suggestive in the ultimate interpretation of this dimension. The first was the discussion contained in the con- cluding chapter of the Roosevelt Court in which Pritchett examined the 'plight of a liberal Court."12 The focus of the chapter is upon the lack of cohesion on the Stone Court generally, but specifically explores power-role considerations of the Court: e.g., activism, self-restraint, Court assertiveness, the legacy of Homes and Brandeis, and the general policy capabilities of the Supreme Court. The second highly suggestive source was Alpheus T. Hason's chapter in The Supreme Court: From Taft to‘Harren, in which he characterised the Stone Court as a Court I'in search of its role.'13 Mason poses the ques- tion of how’s Judicial body retains its identity in a situation where its own policy priorities coincide with those of other policy-asking authorities. The consideration of Judicial power as a useful explanatory direction becase more plausible as the dimension's sets and their respec- tive component cases were reviewed free this perspective. The cases contained in the scales of the Judicial Power’dimension do not specifically focus on the matter of Supreme Court Jurisdiction in a formal legal sense nor do the cases reflect any exercise of Judicial review as such. Rather, the underlying feature of the variables aligning on this dimension relates to the degree of discretion the Court possesses 109 and chooses to exercise in the performance of its Judicial function in the broadest sense. The question dominating the responses of the Court in.the cases of this dimension was essentially viewed in power-role definition terms. The decision to devs10p an interpretation of this dimension along Judicial power lines entertained certain elements of risk. Considerations of Judicial power in the context of other value premises makes it most difficult to separate behavioral influences. It is certainly appropriate to suggest that power considerations are used in Judicial opinions in a strategic manner, and it is always the possibility that particular Judi- cial power postures will ensure compatibility with substantive policy pri- orities of individual Justices. Nevertheless, the Stone Court seemed confronted with unusual contextual circumstances, and that their concern with Judicial power was a priority of more than casual or strategic con- corn. The cases of the sets of this dimension reveal different perceptions of the Court's appropriate role in terms of both remedies available through Judicial action as well as the matter of Supreme Court Juris- diction per se. The general legislative deference of the Stone Court is clear and well-documented, and the discussion of the Governmental Regula- tion dimension dove-tails entirely with this proposition. Through the sheer force of policy priority coincidence the Stone Court was not des- tined to assume the functionally activistic position of the pro-1937 Hughes Court. Retention of as much Judicial discretion and independence as pos- sible, however, did produce responses coded in Judicial power terms. In short, the primary thrust of the Judicial power interpretation might best be cast in terms of how a liberal Court strikes a mediate position some- where between that of an obstructionist and a "rubber stamp.“ That the 110 Stone Court wished intensely to be neither fostered an interpretation of this dimension along Judicial power lines. The Judicial power value can be seen in several different kinds of cases within the dimension. The first area in which the power consider- ation is visible involves deference to Judicial precedent. The Court's special role in civil liberties cases provides a second reflection of- the role consideration. The third type of case in which the Judicial power consideration is relevant relates to remedial discretion derived directly from legislative enactments. A fourth and related aspect relates to the extent to which the Court can (or should) expand legislative policies through statutory construction. The extent to which the Court deferred to decisional bases of administrative decisions and orders con- stitutes a fifth category of Judicial power cases. The federal-state relationship provides a final kind of issue in which the salience of the power question is significant. Reference to Judicial precedent provides a useful reflection of the role definition-Judicial power issue. During the five-term period of the Stone Court, nine prior decisions of the Supreme Court were over- ruled directly; Eight of these cases are contained in the scale-sets of the Judicial Power dimension.lh The psrvasiveness of the deference to precedent norm, however, cannot be adequately represented from these nine cases. Frankfurter's opinions in two of the Religion set cases clearly indicates that his support of Jehovah's Witness positions was based upon his perceived obligation to adhere to previous Court rulings in this area.15 .The data do not allow an interpretation that deference to pre- cedent is a dominant influence in itself, but it is clear that within the context of the broader Judicial power rubric, maintanence of precedent or the choice not to defer is a power component. This comports closely 111. with the findings of Schubert in his analysis of civilian control and precedent in terms of differential impact across the Herren Court.16 Justices Stone, Roberts, Reed, and Frankfurter reacted more positively' to the precedent norm than did their colleagues during the five-term period under analysis in this research. Civil liberties issues also raised important questions relative to the exercise of Judicial power. The support of individual rights in the context of general Judicial liberalism represents one of the great operational paradoxes. The Judicial liberal, one who usually can be expected to endorse governmental regulation in matters economic, seeks stringent limitations upon governmental intervention with repsect to the exercise of individual rights. The relevance of thejudicial power- civil liberties relationship can be reflected in several cases drawn from the component scales. The Right to Counsel set cases, for example, are useful in differentiating individual responses. Four non-unanimous counsel cases were decided during the 19hhTerm.17 The fundamental issue was the legitimacy of the Supreme Court's nationalisation of policy in this area - the incorporation question. The maJority in each of these cases argued the necessity of establishing uniformity as well as the more traditional civil liberties position relative to counsel. Frankfurter, on the other hand, spoke exclusively in federal-state terms, and the impro- priety of Supreme Court intervention in these matters. He said, ... to assume disobedience instead of obedience to the Law of the Land by the highest courts of the States is to em- gender friction between the federal and state Judicial systems, to weaken the authority of the state courts, and the‘administration of state laws encouraging unmeri- torious resorts to this Court....1 Comparable considerations of power are replete in the cases of the Religion set. The federal-state issue is involved in many of these cases, 112 but essentially in the context of deference to local legislative bodies. The deference aspect supersedes considerations of federalism in all of these cases. The character of the litigants in most of the Religion set cases may have also prompted individual responses of arnique sort as only one Religion set case (In re Summers) did not involve Jehovah's Witnesses. Nevertheless, the central feature of the Court's opinions revolves around the question of the Court's role in protecting First Amendment free exercise rights for religious minorities as opposed to enacted policies of state legislatures (or school boards). Excerpts from the Jackson maJority opinion, and the Frankfurter dissent in the second flag-salute case19 are illustrative. Jackson, on behalf of the six-Justice Barnette maJority said, ... We cannot, because of modest estimates of our com- petence in such specialities as public education, with- hold the Judgment that history authenticates as the function of this Court when liberty is infringed...2° Frankfurter echoed his maJority opinion from the first flag-salute case21 in which he supported state interests at the expense of minority reli- gious rights. Apropos to the deference aspect, The Constitution dees not give us greater veto power when dealing with one phase of '1iberty' than with another.... In neither situation is our function comparable to that of a legislature or are we free to act as though we were a super-legislature.... In no instance is this Court the pri- mary protector of the particular liberty that is invoked.22 A case which even more directly represents the centrality of the power question is the Yamashita decision.23 The Yamashita case involved the appeal of a Japanese general from his conviction before a military tribunal for war crimes. The maJority of the Court through Chief Justice Stone suggested that Tamashita had no constitutional rights relative to an appeal saying, “the commission's rulings on evidence and on the node of conducting these proceedings against petitioners are not reviewable 113 by the courts, but only by the reviewing military authorities."21t This position was vigorously challenged by Justices Rutledge and Murphy. Murphy's perception of the Court's role in this case can be seen quite readily as he said, The determination of the extent of review of war trials calls for Judicial statesmannhip of the highest order. The ultimate nature and scope of the writ of habeas corpus are within the discretion of theJudiciary unless validly cir- cumscribed by Congress. Here we are confronted with a use of the writ under circumstances novel in the history of the Court. For ny own part, I do not feel that we should be con- fined by the traditional lines of review drawn in connection with the use of the writ by ordinal criminals who have direct access to the Judiciary in the first instance. Those held by the military lack any such access; consequently the Judicial review available by habeas corpus must be wider than usual in order that proper standards of Justice may be enforceable...25 A final illustration comes from the Colegrove v. Green case26 of the Equal Protection set. The disposition of the plea for Judicial intervention into the area of legislative malapportionment pronpted Frankfurter's famous "courts ought not enter this political thicketn reJoinder. Clearly the considerations of the appropriateness of Judi- cial involvement in "political questions" was the determining issue. Numerous cases from the scales of the Judicial Power dimension can be used to demonstrate Judicial expansion of legislative regulation through construction and/or the operationalisation of Judicial discretion in terms of remedy alternatives legislatively mandated. The criterion used in the selection of illustrative cases in the remaining discussion of the Judicial Power dimension is the representation of the content of as many of the dimensions scales as possible. Haxmizing the nunber of scales represented most efficiently reveals the underlying Judicial power issue across seemingly unrelated substantive scale-set content. Three cases are chosen to demonstrate the expansion through construc- tion of federal legislative power. The first is United States v. 11h South-Eastern Underwriters Association.” The South-Eastern maJority held that insurance was sufficiently interstate in character to allow federal regulation under the Sherman Act. The decision, which also over- turned a long series of contrary Supreme Court decisions, distinguished previous litigation from the present case on the basis that prior Judicial attention had focused exclusively “on the validity of state statutes," rather than federal regulation. The Court's maJority obviously did not feel any constraint from prior decisions examining state regulation. Precedent itself was used to drive home this point as Black said, “... past decisions of this Court emphasize that legal formulae devised to uphold state power cannot uncritically be accepted as trustworthy guides to de- termine Congressional power under the Commerce Clause."28 The central legal issue for determination was whether insurance was interstate commerce. The rationalization of expansion of federal control of insurance was cast in terms of what the Court could appropriately use as bases for determination of this issue. Black addressed this point by 3337138: we may grant that a contract of insurance, considered as a thing apart from negotiation and execution, does not itself constitute interstate commerce. But it does not follow from this that the Court is powerless to examine the entire trans- action, of which that contract is but a part, in order to determine whether there 33: (emphasis added) he a chain of events which becomes interstate commerce.. Justices Stone and Jackson contested these two positions. Regarding the matter of Court reversal of precedent as well as expansion of regulation itself, Stone said, To give blind adherence to a rule or policy that no decision of this Court is to be overruled would itself be to overrule many decisions of the Court which do not accept that view» But the rule of stare decisis embodies a wise policy because it is often more important that a rule of law be settled than it be settled right.... Before overruling a precedent in any case it is the duty of the Court to make certain 115 that more harm will not be done in reJecting than in re- taining a rule even of dubious validity....3o Jackson considered the power of the Court to involve itself in.a policy expansion not first asserted by Congress itself. So long as Congress acquiesces, this Court should adhere to this carefully considered and frequently reiterated rule which sustains the traditional regulation and taxation.of insurance companies by the states.... The orderly way to nationalize insurance supervision, if it be desirable, is not be court decision but through legislation.31 The influence of considerations of precedent in the decisional behavior of Jackson are also clearly revealed as he suggested, "were we consider- ing the question for the first time and writing upon a clean slate, I would have no misgivings about holding that insurance business is com- merce."32 The South-Eastern Underwriters case was drawn from the Antitrust scale. Antitrust is conventionally placed in some kind of economic regu- lation category in most classificatory schemes, but the Judicial power consideration was evident as well. Schubert's discussion of economic policy since 1937 further reflects this assertion. Schubert begins with .Arthur S. Miller's view that the post-1937 Court has used constitutional interpretation "only in the supportive sense of expanding the recognised scope and legitimacy of congressional authority....,"33 and proceeds to assert that the Court "continues to, however, participate in the develop- ment (emphasis added) of many sectors of national economic policy: Anti- trust is a conspicuous example...."3h So, too, in the areas of patents and bankruptcy. lbrtin Shapiro's comments on the former are useful. ... in the patent field the Supreme Court's announcement in 1966 that the standard of invention is a constitutional rather than purely a statutory one has some tactical signi- ficance in strengthening the Court's hand, But by that time the Judiciary had been intervening in.Patent Office decisions for over a hundred years without having decided whether their review was constitutional or statutory.35 116 Several other sets contain a plethora of cases similarly reflecting this point. The National Labor Relations Act, Fair Labor Standards Act: Coverage, Railway Labor Act, and Due Process sets are the best examples. The expansion of employer regulation under the Ragnar Act is illustrated in‘Hallace Corporation v. NLRB,36 which sustained a Board findings of unfair labor practices against a company whose own influence dominated an independent union which won a shop election. The central issue was the authority of the Board to supervise union membership or other union practices. The Court majority found this power granted to the Board. The definition of authority was usually supportive or additive, but not entirely. The Due process set case of Cudahy Packing Conpany v. Holland37 in- dicates that the Court did make restrictive interpretations of authority of particular agencies. The Cudahy decision held that the Administrator of the wage and Hour Division did not have the statutory power to dele- gate the power to issue subpoenas to subordinates. These latter two cases provide a useful transitional perspective for the consideration of Judicial remedies available to the Court as well as the linkage with ad- ministrative agencies and agency decisional bases. .An example of the remedy discretion aspect of the judicial power interpretation can be seen in United States v.'wayne Pump Compan;y.38 The case arose out of price-fixing prosecutions under the Sherman Act. A lower court ordered demurrer of the indictment, and the question before the Supreme Court was the reviewability of the lower court demurrer order. Determination by the Court as to remedial alternatives seemed a compel- ling force even in the context of legislative deference. Hecht Coupany v. Bowles,39 taken from the Emergency Price Control set, satisfactorily' conveys this point. The Court was asked in Hecht v. Bowles to support 117 the assertion that Congress had made it mandatory for federal courts to enJoin EPCA violators. The Court, however, was not inclined to accede to this rigid construction. Rather, the Court preferred to interpret the statute in order to provide a "full Opportunity for equity courts to treat enforcement proceedings under this emergency legislation in accordance with their traditional practicethO In short, the Court obviously wished to retain for the Judiciary as much of its own discre- tionary authority as possible. The return of a case for retrial to a state court on the grounds that certain economic groups were excluded fron Jury selection processes was seen by the Court's minority as too great an intervention by the Supreme Court, a point previously raised in the discussion of civil liberties issues, also reflects the Judicial power question.“1 The fed- eral-state matter is also seen in exclusively Judicial power terse in the case of Toucey v. New York Life Insurance CompanyJ‘2 The Court was asked in the Toucey case to enJoin the relitigation in a state court of a case previously decided in a federal court. The Court did enJoin the reliti- gation as well as overrule a twenty-year old precedent.h3 The Judicial power question is also visible in a number of cases appealing decisions of administrative agencies. The point at issue in all of these cases was not only policy content of decisions of com-issions and agencies or the Jurisdiction as such of these agencies. The focus was upon the decisional standards and non-technical bases of the decisions of these agencies. The Court appeared very willing to take an assertive position relative to the standards used by administrative agencies. Imp plicit in these cases was the notion that deference to technical expertise of administrative agencies must only be accorded when, in fact, this 118 technical expertise is involved. The Gregg Cartage v. United States casehh from the Interstate Comp merce Commission: Public Necessity and Convenience Applications set seroes in on this matter well. A maJority of the Court reversed an ICC order with Douglas saying, Great deference is owed a commission's interpretation of the law which it enforces, especially where the meaning of the statutory language, generally or in specific application, gains body and flavor from the content of the highly spe- cialised field in which the expert body works.... But that it quite different from acceding to the suggestion that the non-technical word 'control' may be interpreted in a way which goes against all human experience and which does violence to its ordinary and accepted meaning....'We should not permit ... statutory grants to be whittled away on the basis of technical and legalistic grounds which find no ex- pression in the stfigute however much the administrative chore may be alleviated. The intensity of the division within the Court on this issue can be seen in a dissent in another ICC case reversing a Commission order. Frankfurter said of the reversal, It overturns the exercise of a discretion which Congress has delegated to the Interstate Commerce Commission upon grounds which seem to us so unsubstantial as really to be a reversal on suspicion.... What this amounts to is that the Court re- fuses to tell the Commission what it thinks about the evidence until the Commission tells what it thinks about the law. We cannot regard t as the most helpful use of the power of Judicial review. Review of decisional bases was not confined to the ICC, and the Court's willingness to consider agency decisions on appeal supports the Judicial power interpretation. Two wage and Hour rulings,h7 for example, clearly convey the Court's asserted role in setting standards, drawing operational guidelines, and oversight of administrative guidelines. The Court's involvement was rationalised in this way, "On the terms in which Congress drew the legislation we cannot escape the duty of drawing lines. And where lines have to be drawn they are bound to appear arbitrary when 119 Judged solely by bordering cases.“8 Standards used by the Federal Power Commission were not exempt from review either. The opinions in Federal Power Commission v. Natural Gas Pipeline Company,h9 and FPC v. Hope Natural Gas Company,50 the latter fromrthe Fiscal Liability set, produced pointed Court response. The War Power set ease allowing wartime transportation increases in rates also generated vigorous Court reaction.51 The final facet of the Judicial power question can be seen across cases taken from the Federal-States: Policy Conflicts, Federal-State: Tax Conflicts, and State Taxation: Commerce sets. The cases which emerge from the federal-state context with respect to the Judicial power issue relate to the Court's role as arbiter of the federal-state relationship. The inclinations of a maJority of the Stone Court were pro-federal, but each of these cases contained significant references to the propriety of Court involvement in this issue area. Hill v. Floridasz characterises the Court's obligation to decide conflicting federal and state regulations. A Florida statue required all union business agents to register with the state. The Court held that this requirement was at odds with the intent of the Ragnar Act and inhibited workers in their selection of bargaining representatives. The dissent urged that the Hagner Act did not specifically deal with the matter of union business agents or their qualifications, thus, the Court not legitimately intervene to void the Florida status. The dissent high- lighted the Judicial power issue through the charge that the maJority was seeking avenues by which to assert itself into this substantive policy area. Similarly, Frankfurter took the maJority to task in Pacific Coast Dairy, Incorporated v. Department of Agriculture of’California53 in a 120 case where the Court's maJority exempted a federal enclave located in California from a state milk regulation without specific congressional authorisation. Frankfurter asserted that Congress may have the power to authorise the Court to grant such exemptions, but in the absence of specific instruction, the Court cannot allow such an exemption. Rather, the Court must confine itself to parameters of rules and remedies pre- viously established. The Court's involvement in the intergovernmental tax.immunity5h area further evidences the Judicial power consideration intertwined within the federal-state context. Such decisions as McLeod v. Dilworth,55 Nippert v. City of Richmond,56 and Haven and Allison Company v. Evert57 - all found in the State Taxation: Commerce set - demonstrate the Court's willingness to retain some degree of control over state taxation policies. The individual behaviors of the Stone Court's members can be suf- ficiently characterised in the traditional activism-restraint rubric. The poles of such a continuum, however, do not accurately reflect end- points of absolutes in any comparative sense. The end—points of a con- tinuum used to describe the Stone Court would not be applicable in the consideration of the Hughes Court, for example. The considerations of Judicial power found in Stone Court cases did not approach the kinds of absolute functional activism demonstrated prior to 1937. Similarly, no member of the Stone Court seemed to seriously entertain the possibility of absolute self-restraint or total policy deference. Thus, the indivi- dual responses of the Stone Court Justices must be viewed from a Stone Court perspective. Differentiation of individual responses of Stone Court Justices was accomplished by means of examining average dimension scale scores. Those 121 Justices with mean scale scores between 1.000 and .800 were categorized as strongly activist. Moderate activists had mean scale scores in the .799-.600 range. The .599-.h00 range contained those Justices whose Judicial power response was essentially neutral. Moderately and strongly restraint-oriented responses fell into the .399-.200 and .l99-.000 ranges, respectively. The classification of the eleven Stone Court Justices are provided in Figure 2 below. The mean scale scores were derived from FIGURE 2 Individual Judicial Power Dimension Descriptions Justice Black Douglas Murphy Rutledge Byrnes Burton Stone Reed Jackson Frankfurter Roberts Mean Score .895 .869 .782 .769 .719 .580 .Soh .hh9 .350 .289 .139 Description Strong Activist Strong Activist lbderate Activist Moderate Activist Moderate Activist Neutralist Neutralist Neutralist Moderate Restraint .Hoderate Restraint Strong Restraint twentyhthree scales for eaeh Justice except Burton and Byrnes whose lack of participations in dimension cases precluded calculation of scale scores in all but six and three sets, respectively. The fullest appreciation of the Judicial power interpretation and the individual descriptions above can be achieved through reference to Schubert's functional theory of Judicial activism and restraint. Schubert defines Judicial activism and restraint in terms of policy harmony of the Court with other institutions of policybmaking authority. Policy harmony, regardless of the substantive of that policy, reflects Judicial self- restraint. Activism exists whenever policy positions are not coincident.58 Figure 3 demonstrates diagramatically the kinds of institutional and 122 policy relationships which are possible. The Judicial power character FIGURE 3 Functional Scheme of Activism and Restraint OTHER DECISION-MAKERS 4. Static + Dynamic + ... Static Restraint + Activism (I) + (II) SUPREME + +++++++++++++++++++++++++++++++++++++++++++++++++++ COURT + Activism + Activism 93 Dynamic (III) + Restraint + (IV) 4» of the Stone Court can best be elaborated in terms of cell IV. All of the policy-making authorities at the national level were I'in motion“ during the Stone Court period; policy changes are occurring at all points. The Judicial liberals on the Stone Court were generally inclined to give full support to policy decisions of Congress and Roosevelt. In other words, they generally assumed a restraint position. The cases contained in the Judicial Power dimension, however, represented areas in which policy movement by the other decision makers was the least developed. Thus, the deferential Judicial liberals who score most highly in terms the governmental regulation value are also found with high activism scores. It is for this reason that the cell IV relationship, the cell which considers policy and institutional relationships in terms of rate of change, most aptly reflects the Stone Court and the thrust of the Judicial power interpretation. Four of the Judicial Power dimension sets contained individual behaviors described as dimensionally "deviant." These deviant scale 123 ranks were scrutinised in terms of the Judicial power interpretation. Two of the rank deviations were in large part, produced by conservative break-point Judgments by the author. Murphy and Black's ranks in the Trial: PreJudioial Errors and Railway Labor Act sets, respectively, were effected by non-participation in a case important to the determination of scale ranks. The break-points for each Justice was placed before each of these cases rather than following them. were Murphy to have partici- pated in Marconi Wireless Telegraph v. United Statee59 and voted positively, his rank would have been a tie for fifth rather than seventh. Similarly, a positive response from Black in Switchmen's Union v. National Mediation Board60 would have changed his set rank of sixth to a tie for fourth.61 The deviation in rank of Justice Rutledge in the Double JeOpardy set as well as Stone's Due Process set rank were the result of "atypical'I dimensional responses. Rutledge's unwillingness to view the Joining of commission and conspiracy to commit a criminal offense as double Jeopardy in Pinkerton v. United States62 means the difference between his set rank of eighth and a possible tie for fourth with three other Justices, a more "typical" dimensional rank. Stone's behavior in the cases of the Due Process set stemmed from a highly rigid definition of what constitutes denial of due process. Stone, very sinply, was not receptive to claims of capricious treatment. Though the cases in this act more directly related to Judicial power considerations than many of the others, Stone's manifest behavior was substantially different in the Due Process set than the remainder in terms of supporting requests for Judicial intervention.and relief. 12h 8.2. The Governmental Regulation Dimension The Governmental Regulation dimension is far less complex in terms of case diversity than the Judicial Power dimension. At the same time, the Governmental Regulation dimension is somewhat more complex.in terms of breadth than rough counterpart dimensions found in studies of the Vinson and warren Courts.63 Spaeth's analysis of the warren Court suggests the primacy of a value he labels "New Dealism" in the behavioral motivations of the warren Court Justices. The New Dealism value pertains to "economic issues, to governmental regulation.of business and labor.'6h The salience of the New Dealism value to Justices of the Stone Court is Just as significant, but the breadth of subJects regulated reaches beyond business and labor. To be sure, the regulation of business and labor is central, but the regulation of other subJects is involved as well. The interpretation of this dimension is also broad enough to encompass state regulation, for example. 'Hith respect to the latter, the Stone Courtperiod saw an end to the use of the due process clause as a means of voiding state bus- iness regulation and taxation. Not a single state regulative statute was invalidated on due process grounds.65 The Stone Court period marked the ascendancy of what Kelly and Harbieon call "national liberalism."66 The focal point of the national- ization of regulation came through the expansion of congressional power under the Commerce Clause. The specific subJects reached under the com- merce power were many, but one of the most visible was organised labor. Nine of the Governmental Regulation dimension sets relate in some degree to organized labor.67 125 The Court's involvement with labor regulation (more precisely, federal legislation dealing with labor) stemmed basically from two particular enactments, the National Labor Relations (Wagner) Act, and the Fair Labor Standards Act. Consequent to these acts were activities of the administrative agencies created by Congress to effectuate the legislative policy - the National Labor Relations Board and the Adminis- trator of the wage and Hour Division. The cases in the NLRA and FLSA sets are all illustrative of the Courtfis response to the policy directions of Congress, and these cases readily reflect the governmental regulation interpretation. The cases in the Unions: Closed Shop, Unions: Colicitation, and Unions: Bargaining Agents sets encompass a more specific policy focus than the ULRA or FLSA sets although some overlap does exist. One of the most extreme tests of the NLRA came in a Closed Shop case, for example, in‘wallace Corporation v. NLRB.68 The Court in'wallace upheld a Board ruling that any employer, regardless of whether duplicity exists or not, is responsible for the conduct of a union which has been given a closed shop contract. A number of other Closed Shop set cases with a NLRA basis could be listed69 though their detailed mention is not particularly addi- tive. A markedly pro-labor position can also be seen in several of the Closed Shop set cases. The Court's refusal to apply the Sherman Act . against a labor union in a closed shop situation is reflective.70 State inhibition of union activities, solicitation in particular, were also prohibited by the Court in several of the Solicitation set “3.971 which emphasises the federal-state component of this dimension. A special area of regulatory involvement relative to organised labor 126 involved employer liability for work-related inJuries. Two sets, Federal Employers' Liability Act and Personal InJury Liability, con- tained most of the litigation of this particular type. Few cases in these sets are especially noteworthy, but the governmental regulation linkage is nonetheless quite obvious. The linkages of several other sets are relatively self-evident and will not be discussed in any detail. Reference to specific cases or the AOqAS descriptions in the appendices should suffice in making the govern- mental regulation connection. Among these sets are Utility Regulation, Federal Taxation: Succession, Emergency Price Control Act, Commission Regulation: Rates, Federal-State: National Supremacy, Eminent Domain, Patents and Copyrights, Administrative Deference, and Delegation of Legislative Power. The cases in these sets all consider, at least to some degree, the scope and legitimacy of federal regulation generally. These same ques- tions are also contained in the remaining dosen dimension sets, but the linkage is not quite so self-evident. The remaining portion of substan- tive discussion of this dimension will rationalise the governmental regulation interpretation across these seemingly unrelated sets. It was the presence of these sets which led to an expansion of the interpretation from economic regulation to governmental regulation more generally al- though such an expanded scope had been suggested by the other sets as well. Several of the sets seem, on their face, to be more directly linked to the Judicial Power dimension. .An inspection of the Comity set pro- vides an excellent illustration of the regulatory linkage. Comity in- volves the exercise of federal court Jurisdiction prior to the completion 127 of litigation in state courts. The Comity set cases, however, contain comity considerations within the regulatory context. For example, in Doris v. Department of Labor of washington,72 the Court refused to en- Join a state proceeding under state legislation despite possible overlap ‘with the Federal Longshoreman and Harbor Whrkers' Act. The endorsement of the state regulation in this, although not neatly consistent with an expanding federal regulatory position, does reflect a support of the pro- regulation value by the Court maJority. Even the cases in the Supreme Court Jurisdiction set reflect the general regulation value. For instance, in a case raising the issue of the court vis-advis the Federal Communications Commission, the Court acknowledged congressional power to authorise the FCC to make various determinations regarding their own decision making procedures while sus- taining the Commission's decision to grant broadcasting privileges to competing applicants without a hearing.73 Other cases in this set similarly focus on the technical question of the scope of Judicial re- viewability within the regulatory context, e.g., the reopening of patent infringement issues in a case previously litigated,7’4 the clarification of procedural pre-requisites for writ of prohibition motions,75 and the Judicial enforceability of executive agreements as internal law.76 The less than independent relationship of the Judicial Power and Governmental Regulation dimensions is very clearly reflected in the cases of the Jurisdiction set. The Statutory Construction sets have a more direct linkage to the general regulation interpretation though the Judicial power component of regulatory expansion Judicial interpretation is scene .One of the Remedy set cases, Gemsco, Incorporated v. Whlling,77 found the Court ruling that 128 the Wage and Hour Administrator, "when he found that a minimum wage order covering the embroideries industry could not be made effective because be per cent of the work in that industry was done at home, had authority under the FLSA to prohibit industrial homework in that industry."78 The response in the dissent of Justice Roberts emphasizes the Court's division on the question of regulatory powers and administrative authority pursuant to federal legislation. Roberts said, l'...the philosophy of the Court's opinion can be nothing less than that the Administrator may, if he finds necessary, rewrite a statute.'79 The extension of FLSA provisions through construction to cover employees of a daily newspaper sending less than one per cent of its papers out of state80 is similarly reflective of the regulatory content of cases contained in this set. The other statutory construction set contains cases in which the Ceurt considered the criminal liability of certain actions relative to various legislatively proscribed areas. The decisions of the Stone Court here again focused on the scope of legislative authority to regulate. Allen Bradley Company v. Local Union No. 3,81 for example, considered the anti-competition effects of a closed shop agreement relative to Sherman.Act prohibitions. Another union practice, that of demanding that out-of-state trucks replace the drivers with local union drivers upon entry into New York or pay the union for comparable time, was found by the Stone Court to be outside the scope of a l93h anti-racketeering statute in terms of the criminal liability of the union.82 In short, the cases of the two statutory construction sets consider the limits of legislative prescriptions and the definition of criminal liability for alleged violations of those prescriptions. The Indian Property set contains a limited number of cases as well 129 as a special attitude obJect. Three cases, disposed of through a single opinion, dominate the set because of the necessity to break tied ranks through expansions. The case, Oklahoma Tax Commission v. United States,83 allowed the State of Oklahoma to subJect inherited properties of the litigants to state estate taxation notwithstanding their federal ward status. The legal question facing the Court was whether Congress had ex- empted Indians from such taxation. The Court's decision supported an ex— tension of regulation through taxation - albeit regulation exercised at the state level - rather than adopting the arguments proposing limitations on the regulatory powers of the government. The Court's reactions to the issues contained in the Indian Property set differ substantially from those of the Indian Treaties set cases. The opinion emphasis in many of the cases in the latter set made specific reference to the exploitation of Indians, and the need to offer retribution - symbolic and real. The cases of the former set merely considered the extent to which existing federal legislation allowed the basis for entertaining exemptions for Indians from state regulation. The Appeals: State to Federal set provides a useful transition into the remaining Governmental Regulation sets. Its cases raise the emerging civil liberties component which is found throughout the remaining sets. The Court in Thomas v. Collinth invalidated a Texas statute under which the president of the UKW'had been convicted for failure to secure an or- ganisers' card from the state prior to making an address at a union meet- ing. The statute was voided on First Amendment grounds by'a five-man maJority though the state court's application of the state statute was a significant consideration. The presumption of regulation validity was shown to have limits, but the regulatory value remains significantly in- tertwined with the civil liberties value. 130 Apropos to the standards which must be applied to an appraisal of legislative regulation, state or federal, is found in Rutledge's maJority opinion, Any attempt to restrict those liberties (First Amendment) must be Justified by a clear public interest, threatened not doubtfully or remotely, but by a clear and present danger. The rational connection between the remedy pro- vided and the veil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundations. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paragount interests, give occasion for permissable limitation.8 There are clear language similarities between this Opinion and others from the Judicial Power set cases, and, in fact, the dissent focused on the Court's role in reviewing legislation. The dissent suggested that the appropriate criterion to be applied was reasonableness of legislative intent and legislative Judgment generally. The remaining six sets, Evidence: Sufficiency, Jury Trials, Military- Civilian, Naturalisation-Denaturalisation, Speech and Press, and Collabor- ation all raise issues in which there seems to be a convergence of the governmental regulation, civil liberties, and Judicial power values. Several of the Jury trial cases, as an illustration, involve Jury deter- minations of claims against corporations,86 usually in an inJury liability context. Others, however, dealt more directly with the trial by Jury guarantees per se,87 and the representativeness of Juries in terms of selection practices.88 For the most part, though, the cases involve the extent to which regulatory proscriptions are maintained within the con- text of Jury determinations. The MilitarybCivilian and Naturalisation-Denaturalisation set cases have a rather narrowly defined war emergency orientation. Among the cases 131 of the former set are Korematsu v. United States89 in which the Court sanctioned the relocation of JapaneseeAmericans, In re Yamashita9° in which the Court deferred to military tribunal decision and procedures, and Duncan v. Kahanamoku,91 a case which reviewed the legitimacy of military courtjrials of civilians under declared martial law. The lat- ter set involved federal regulation of naturalization, and the standards that are appropriate in determining validity of naturalised citizenship, especially the conditions under which citizenship achieved through natu- ralization may be removed. The litigants in the Naturalisation-Denaturalization set cases were all political extremists of either the rig'ht92 or the left93 which posed the question of possible political prosecution in the context of the exercise of federal authority over denaturalisation. The primary conten- tion of the Stone Court civil libertarians was that the federal govern- ment could not exercise any denaturalisation power without making all naturalized citizens “second class" in character. This represents the very heart of the power to regulate issue intermeshed with the issue of individual liberties vis-aevis governmental regulatory powers. The final set to be highlighted, Speech and Press, focuses on the kinds of regulations which can be applied essentially to printed matter. In what might otherwise be considered to be strictly a question of civil liberties nature, a linking component was identified. Most of the cases raised the question of whether regulation not specifically intended to curb the content of publications could be constitutionally sustained. For example, the question was raised as to whether provisions of such legislation as the Fair Labor Standards Act and the Fair Labor Standards Act could be applied to newspaper publishers. Or whether the regulation 132 of labor generally in these industries conflicted with First Amendment prohibitions. The Court's response was generally supportive of such con- gressional regulatory policies, but with clear indications that such regu- lation.was limited, e.g., labor relations. The dominant value of this dimension is regulation. This interpre- tation corresponds closely with numerous previous characterizations of the Stone Court period. Host of regulation reviewed by the Court during the l9hl—l9h5 Terms was federal government regulation, though state regu- lation is encompassed in addition. Generally, the obJects of regulation relate to the econony, e.g., business and labor, but additional obJects are also regulated. The description of the individual responses to the regulation value are shown in Figure h below, The descriptive eategories developed for this dimension establish strongly pro-regulation and strongly anti-regulation as the polar positions. The general stance of the Stone FIGURE h Individual Governmental Regulation Dimension Descriptions Justice Mean Score Description Murphy .928 Strongly Pro-Regulation Black .887 Strongly Pro-Regulation Douglas .868 Strongly ProéRegulation Rutledge .7h2 Moderately Pro-Regulation Byrnes .667 Moderately Pro-Regulation Jackson .609 .Hoderately Pro-Regulation Reed .519 Neutralist Burton .326 Moderately Anti-Regulation Frankfurter .300 Moderately Anti-Regulation Stone .233 Moderately Anti-Regulation Roberts .061 Strongly Anti-Regulation Court as a whole can be seen in the skewed distribution of mean scale scores in the pro-regulation direction. The descriptive category cut-off points are based upon the same ranges as were used in the classification of individual behaviors with the Judicial Power Dimension. 133 The deviant behavior in certain Governmental Regulation sets are not random. Only Jackson's behavior in the Unions: Closed Shop set is actually reflective of an anti-regulation position, a deviation from the dimensional behavior generally. As can be seen, Jackson was moderately supportive of governmental regulation. He could not, however, support certain applica- tions of regulatory controls in the Unions: Closed Shop set.9h Murphy appears as dimensionally deviant in three sets. His mean scale score is higher than any other Justice along the Governmental Regu- lation dimension, but Murphy assumed an aggressive anti-regulation posi- tion in several cases where civil liberties considerations were perceived as more salient. This behavior was most obvious in the Collaboration and Naturalisation-Denaturalisation sets. Under these unusual circumstances, Murphy found regulation by government indefensible. The behavior of Jus- tice Douglas in the Comity set and Rutledge in the Supreme Court Juris- diction set are products unusual federal-state and Judicial power con- siderations, respectively.95 8.3. The Administrative Oversight Dimension It could be reasonably asserted that the Administrative Oversight dimension is not a separate dimension at all. Rather, it might better be characterised as a special sub-dimension ofebgthlthe previously described dimensions. The sets locating on the Oversight dimension load highly on a separate factor from Judicial Power and Governmental Regulation. Many' of the Oversight sets, however, loaded moderately well - at times approach- ing equivalent loadings - en one of the other dimensions. It, thus, seemed highly plausible to interpret the Oversight dimension as a product of an interaction of the basic values of the Judicial.Power and Govern- mental Regulation dimensions. The eleven-set Administrative Oversight 134 dimension has been developed within this framework. The oversight interpretation was initially suggested through an effort to understand why several sets did not locate on either of the other two dimensions, e.g., Bankruptcy on the Governmental Regulation dimension, and the Judicial Review of Regulatory Commissions set on the Judicial Power dimension. The cases of these sets reflected quite unmis- takably the linkage of the governmental regulation and Judicial power values. At issue in these cases was the legitimacy of governmental regu- lation, the scope and limits of administrative machinery through which regulation became operative, and a consideration of the Court's role and discretion with respect to legislative and administrative decisions and decision-making bases. And yet, these cases did not contain the kinds of language and specific focus on these issues found in the cases of the two primary dimensions. A consideration of the Bankruptcy set may provide useful descrip- tive referents by which to examine the nature of the Oversight dimension and its relationship to Judicial power and governmental regulation values. The Bankruptcy set contained cases in which the federal government, through the Federal Bankruptcy'Aet, regulates bankrupts and the condition of bankruptcy. The Court questioned the government's power to regulate bankruptcy in none of the cases though the Court did review criteria used by administrative machinery. The priorities of the Court seemed focused, however, on the achievement of equity rather than direct expan- sion of governmental regulatory authority or maintenance of Judicial discretion. The cases also had a single case emphasis similar to workmen's compensation litigation rather than being cast in broad, general policy terms. 135 A specific illustration can be derived from State Bank of Hardine- burg v. Brown96 where the Court considered the question of what consti- tutes assets under the Federal Bankruptcy Act. Construction of the act relative to the definition of relevant assets was pro-requisite to sub- sequent asset distribution and bank reorganisation. In response to the question of who is to determine what assets are distributable, the Court was perfectly willing to acknowledge administrative rulings as legitimate in this area. Because the appropriate administrative agency had not made such a determination, the Court reviewed the matter and suggested guidelines. The emphasis throughout the disposition of the case was upon returning the case for final resolution, and the Court's involvement was intended to expedite such resolution. Two other cases extend the Court's emphasis on expediency. In one, the Court talked about the need for the ICC to be flexible in the deter- mination of asset valuation standards of a prior liquidation pursuant to reorganisation.97 In the other, the Court suggested that in the reorgani— zation of a bankrupt enterprise, the paramount priority is minimizing delays. As a result, the Court de-emphasised precise guidelines since unfounded and highly technical contentions are generally counter-productive in terms of achievement of rapid disposition of these matters.98 The guidelines offered by the Court in these cases were extremely broad and flexible. Throughout the Opinions were words of encouragement te admin- istrative agencies to proceed and resolve. The compelling value became one of operational expediency and smoothness. The Court's involvement in these cases was directed at this end and limited to this consideration. Even in the federal-state context, the Court seemed pro-occupied with administrative resolution wherever it could be achieved. MhKenzie 136 v. Irving Trust Company99 raised the question of whether receipts re- ceived four months after institution of bankruptcy proceedings were transferable to the liquidated assets. The Court decided that one suc- cessful way of handling the question was embodied in state law. Not- withstanding the Federal Bankruptcy Act, the Court was apparently con- vinced that the state proscriptions were workable and equitable. The dominance of the equityepragmatic orientation is quite clearly manifest in a number of these cases. Emphasis on equity, the operational smoothness interpretation, is not offered at the expense or in lieu of suggesting that the cases of the Oversight dimension do not have substantial policy implications nor to indicate that considerations of legislative regulatory power or Judicial power are insignificant. The differentiating element~is the absence of visibility and intensity in the pursuit of sheer power obJectives, legis- lative or Judicial. Even the sets with civil liberties linkages are not able to generate enthusiastic response. The Coerced Confession set and its cases are illustrative. The Coerced Confession set is small, four cases and one expansion, but it portrays a couple of relevant distinctions from other civil liber- ties-oriented sets, and the other dimensions more generally. Unlike several of the other criminal procedure related sets, the specific sub- stantive question was central. In contrast, the Right to Counsel cases focused mainly on the incorporation issue without much attention directed at the character of counsel per se. The Coerced Confession set cases did emphasize the substantive basis, e.g., what constitutes coercion, stan- dards for the determination of voluntariness, and self-incrimination linkages. Once the standards were addressed, then and only then did incorporation assume relevance. 137 The case of Ashcraft v. Tennessee100 focused on this definitional matter. The maJority in Ashcraft felt that continuous questioning of a criminal suspect and subsequently exacting a confession from him was "inherently coercive." The maJority equated extensive and intensive questioning with overt violence and physical abuse. The minority applied a different criterion - whether the confessor was in control of himself at the time of confession. In Mblinski v. New York,101 the Court rever- sed a conviction on coercion grounds reJecting the notion that Juries were competent to determination whether coercion has been used or not. Another aspect of the oversight interpretation is found in United States v. American Union Transport,102 also a Coerced Confession set case. This case involved a United States maritime Commission investigation in which certain persons were compelled to disclose business-related infor- mation. The information secured was not directly related to criminal prosecution, but rather to subsequent legislative regulation. The stan- dards by which information could be exacted was at issue and comparable in several respects to coerced confession. In terms of standard-setting, the smoothing of operational guidelines, and the efficieney of regulatory . mechanisms, the oversight connection is established rather well. The operational guidelines value can also be seen in several cases from the Judicial Review of Regulatory Commissions set, especially in SEC v. CheneryCorporationl03 and Scripps-Howard v. FCC.10h In both of these cases, the question before the Court involved the extent to which the Judiciary ought to review policy priorities of Congress as made manifest in legislation creating these commissions. The Court attempted to find some mediate position between aggressive review and complete deference. Frankfurter's maJority opinion made it clear that while the Court could 138 not uphold the SEC's order in the Chenery case, the Commission's power per so was not at issue. The operational emphasis of the discussion, however, can best be seen in Black's dissent which addresses itself to the importance of pragmatism within the regulatory context. Black said, A Judicial requirement of circumstantially detailed find- ings as the price of court approval can bog the adminis- trative power in a quagmire of minutiae. Hypercritical exactions as to findings can provide a handy but almost invisible glideway enabling the courts to pass 'from the narrow confines of law into the more spacious domain of policy.'105 Black's willingness to defer to legislative intent is clear in this par- ticular case, but note the pragmatic emphasis. The effort to strike a working middle ground may also be seen in an excerpt from the Scripps-Howard case. Pritchett notes in relation to his discussion of this and other cases that the Roosevelt Court "has been responsible for a markedly different attitude toward administrative agencies, which are no longer treated as 'alien intruders' in the courts.'106 it the same time, the Court in Scripps said, "Courts no less than admin- istrative bodies are agencies of government. TBoth are instruments for realising public purposes.“107 Few single passages from any case within this dimension could better portray the complex bases of the Oversight dimension. One fundamental task of the Roosevelt Court during the terms under consideration with respect to federal regulatory power developed in terms of considering limits of administrative authority under governmental (con- greesional) grants. Generally, the Roosevelt Court supported Congress's policy priorities and sanctioned administrative exercise of authority. Three of the Radio Regulation set cases develop the operation oversight connection. First, the Court found the authority vested in the FCC to 139 regulate radio station licensing also allowed them to develop standards which related to the much wider subJect of regulation, national broadcast networks.108 Because the Court was interested in facilitating regulation without defaulting from its oversight discretion, the Court required in FCC v. Rational Broadcasting Company109 that in the making of frequency assignments, the FCC must allow all parties involved to participate in administrative hearings. Similarly, in Columbia Broadcasting System v. United States,110 the Court departed from the doctrine of administrative finality indicating that FCC regulations could be reviewed in advance of their application. Oversight of the policy regulations of states provides additional evidence of the operational orientation of the Stone Court. The cases of the state regulation type draw the Judicial power question into the interpretation quite obviously, but not sufficiently to allow abandonment of the operational guideline interpretation. Pritchett probes the state regulation area in some detail and characterises individual responses to various kinds of state regulation,111 but Pritchett's focus is super- fluous in regard to the general dimensional interpretation. A cursory reading of any of the cases from the Federal-State: Commerce set provides an ample highlighting of the federal-state component. The description of the interpretation of this dimension has been far more difficult than for either the Judicial Power or Governmental Regula- tion dimensions. This is true because the Oversight dimension is the least distinctive of the dimensions in nature. .Hention was made earlier that the three dimensions were not independent. The degree to which interpretive fussiness exists between the dimensions is most evident with respect to Oversight dimension. The distinctions between the three dimensions are based upon differences of degree rather than kind. In the Oversight 1&0 dimension sets, considerations of Judicial power are down-played sub- stantially while the powers of the government are seemingly perceived as givens. The resultant focus is, thus, switched to considerations of functional efficiency pursuant to legislative mandate; making policies work. The primary argument relative to the Oversight dimension, then, is that it is a special product of the other two dominant dimension values. The relative distinctiveness empirically of the dimension necessitated an attempt to rationalize its separate existence. The need to resolve whether this aggregation of sets is a separate dimension or a sub-dimen- sion of the other dimensions is not of high priority in regard to the broader obJective of explaining decisional behavior. The consideration of individual behavior for the Oversight dimension was comparably difficult in terms of developing a descriptive continuum. Given the relatively imprecise character of the dimension, no single des- criptive label fully suffices. Nevertheless, on the basis of the same mean scale score ranges as were previously used, a summary of individual responses has been developed and is provided in Figure 5. A Justice's behavior which is labelled as strongly oversight oriented represents, over and above considerations of Judicial power and governmental regula- tory prerogatives, the support of a position of Judicial operational oversight for the purpose of enhancing policy effect, regardless of the substance or the source of the regulation. Operational pragmatism is an apt alternative to the pro-oversight value orientation. Several parallels in mean scale scores between those achieved on the next page and those found for the other two dimensions reflects the close linkages of the dimensions. The deviations in mean scale score mirror the rank differences lhl FIGURE 5 Individual Administrative Oversight Dimension Descriptions Justice Mean Score Description Black .962 Strongly Pro-Oversight Douglas .BhS Strongly Pro-Oversight Byrnes .789 Moderately Pro-Oversight Rutledge .720 Moderately Pro-Oversight Murphy“ .718 Moderately Pro-Oversight Frankfurter .651 Moderately Pro-Oversight Burton .ShS Neutralist Md e 5‘12 Neutralist Stone .38h Moderatley Anti-Oversight Jackson .3h3 Moderatloy-AntisOversight Roberts .090 Strongly Anti-Oversight between dimensions which account for the quasi-separate character of the Oversight dimension. The deviant behavior of individual Justices in particular sets is a result of the failure of that Justice to subordinate other values to the pragmatism value. Douglas, for example, is strongly pragmatic generally as his mean scale score demonstrates. His responses in the Fiscal Clhims set, however, reflects an unwillingness to review claim determinations at almost any cost. He argues in Angelus Milling Company v. Commissioner of Internal Revenue112 that the Court ought to confine itself only to the point of law raised in these cases rather than attempting to resolve ad-' ministrative tangles. This marks an atypical anti-pragmatic position for Douglas. The deviant responses of Justices Roberts and Rutledge in the Federal- State: Commerce set are similar in substance though opposite in terms of deviation direction. Several of the set's cases113 find both Roberts and Rutledge holding against challenged state regulation on the ground that federal legislation in a specific policy area has (or should) preclude state regulation in the name of uniformity of regulation. Murphy‘s behavior in the Radio Regulation set reflects his usually 112 rigorous defense of civil liberties arguments vis-a-vis governmental regulatory powers. Murphy reacted very strongly to the regulatory efforts of the FCC to regulate the broadcast media, generally on First Amendment grounds. In the presence of what Murphy perceived as essentially First Amendment considerations, Murphy was unable to defer to such values as pragmatism. Thus, Murphy's general willingness to enhance Operational efficiency pursuant to certain policy priorities was not found to carry over into First Amendment-related issue areas. B.h. The Un-Located Sets Five sets did not align on any one of the three dimensions. These five sets were Federal Taxation: Exemptions, Indian Treaties, Criminal Liability, Search and Seizure, and Selective Service. These sets did not correlate highly with many of the other sets. A quick reference to the inter-correlation matrix in Table 6 will provide ample evidence of general nonsassociation. Federal Taxation: Exemptions correlates above .500 with only one other set. The same single coefficient in excess of .500 exists for the Indian Treaties and Selective Service Sets. Search and Seizure and Criminal Liability associate with three sets at the .500 level. Roughly half the ranked Justices in each of these sets had ranks several levels higher or lower than "typical" rank positions in either the Judicial Power or Governmental Regulation dimensions. Roberts rank in the Criminal Liability set is roughly 54: ranks higher than his mean Judicial Power and Governmental Regulation dimension ranks. Douglas's Criminal liability rank is 635 ranks lower, Frankfurter 335 ranks higher, Black 92 ranks lower, and Reed h ranks lower than mean rank positions 1L3 for each on the two primary dimensions. These substantial and numerous deviations, of course, are responsible for the lack of association of these sets with the other variable-sets. The five unlocated sets will be briefly described in terms of their respective content and unique character. An attempt will be made to indi- cate the unusual alignments of the Justices in these sets as well. Given the transitional character of Stone Court decision making generally, that only five of the sixty scale-sets could not be located on at least one dimension is not surprising. Initial expectations would have placed the Federal Taxation: Exemp- tions set would align on the Governmental Regulation dimension. This ex- pectation stems from the fact that exemption claims all came from busi- nesses or individuals claiming business exemptions. A consistent pro- regulation position would have been upholding federal taxation against exemption claims. Reed, Roberts, and Frankfurter, however, were found aligned with Douglas and Black in most of these cases notwithstanding their neutralist to negative regulation behavior generally. A rather complete deference was given by these five justices to specific legisla- tive language and the determinations of the Commissioner of Internal Revenue. The strongest statement of polar positions on this issue is found in Interstate Transit Lines v. Commissioner of Internal Revenue.11h In this case, the majority suggested that exemptions from taxation are a matter of legislative grace, and that the burden of proof in exemptions cases rests upon the taxpayer. The minority, especially Rutledge and Murphy, asserted the Court ought to retain equity discretion in these cases. Nbre explicitly, this minority suggested that the Court should assume a protective stance toward taxpayers making exemption claims with lhh construction doubts directed in favor of the taxpayer in John Kelley Com- pany v. Commissioner of Internal Revenue.115 The scope of division can also be seen in Wilson v. Cookll6 where Murphy said of the opinion of Chief Justice Stone, "I am unable to comprehend the Court's decision."118 In the Federal Taxation: Exemption set, then, the deviant Justices whose ranks are abnormally high accepted the legitimacy of governmental regulation.via taxation because they perceived the taxation statutes clear. The unusually lower ranks were created.where certain members of the Court sought to exercise independent discretion over standards used in determining exemption claims. The general linkages with the two basic dimension's values are incomplete. The problem for Justices Frankfurter, Reed, and Roberts is the need to support one of two relatively unacceptable positions, pro-regulation or pro-activism. The special status of the Indian.Treaties set is a product of the special status of the A0 and AS, Indians and treaties with Indians. The cases in this set bare some truly basic values. Murphy, for example, went so far as to say that the Court's basis for determining claims of Indians relative to treaty obligations ought be the rectification of past injustices imposed on Indians regardless of how this cuts across other considerations.118 Justices Reed, Black, and Rutledge, though not generally indisposed toward civil liberties arguments, failed to regard the Indian Claims as reflective of injustice or arbitrary governmental action. Altering the directionality of the set fails to imreve the non-cor- relating character of the set. Frankfurter and Roberts have higher ranks than usual because they support the claims of the Indians. If the basis for direction is reversed, Ehrphy and Douglas hare highly deviant ranks. 1&5 The consideration of treaties - as apposed to construction of statutes - and the special status of Indians as parties to these cases result in the unlinkable character of the Indian Treaties set. The unique character of the Criminal Liability set is, like the Exemption set, a result of the legislative deference-Judicial power in- compatibility. The cases in the set required the Court to define the criminal liability of persons or organisations for acts related to various legislative regulations. The kinds of cases contained in this set pro- voked great confusion among the justices as well.as deep division. Screws v. United States119 provides an apt illustration. At issue in Screws was the prosecution of a Georgia law enforcement officer for his participation in the “brutal and shocking” killing of an arrested Negro. The basis for prosecution was a piece of Reconstruction legislation originating in the Civil Rights Act of 1866. Whatever the motives of Congress for the original passage of the act, the legislation provided insufficient guidelines for application, especially in regard to determination of guilt. The specific facts of the case provided no member of the Court with clear direction. The maJority upheld the statute, but granted the defendant a new trial. The cases of this set all required Judicial clarification of statu- tory prohibitions relative to criminal liability. This reflects on its face the fussimess of some of the fact situations out of which litigation arose. In its simplest form, the difficulty confronting the Court in these cases was whether to clarify legislative prohibitions and coincidentally criminal liability, thus subjecting persons to possible prosecution on Judicially clarified grounds. This option was not readily accepted by'a substantial number of Stone Court Justices. 1L6 The Search and Seisure set also produced very unusual divisions with the Court. The principal deviations were in the behavior of Black, Douglas, and Frankfurter, the former two assuming abnormal anti-civil liberties positions. Two pairs of cases are descriptively useful. In l9h2, the Court refused to sustain hth Amendment obJections120 to a wire-tapping variant of securing information. A companion case sanc- tioned inducing a witness to give information on the basis of evidence obtained through a wire-tap.121 Again in l9h6, the same divisions were produced in Davis v. United States122 and Zap v. United States.123 Davis was arrested for selling federal agents gasoline without ration coupons, a violation of the EPCA. The seizure of ration coupons was upheld by the Court maJority with Douglas pointing out that the coupons were “public documents" and always subJect to recall - seizure. The dissent featured a vigorous hth Amendment argument urging conviction reversal. The Zap case involved the seisure of a cancelled check during an audit of a government contractor. The maJority upheld the seisuro on identical grounds to Davis. The combination of the governmental regulation issue, the extent to which certain practices were prohibited by congressional statutes, and the specific civil liberties issue of search and seizure produced the cleavage. The special conditions stemming from the war emergency were also crucial in terms of the develOpment of the "public need" foundation used by the maJority in each.of these appeals. The final unlocated set is Selective Service. The set contains only four separate opinions which in itself may account for the lack of asso- ciation with other sets. The central conflict in the cases related to the government's role in operating the draft within a wartime emergency and generally religious challenges to the conscription of specific individuals. 1L7 Two oases12h requested the Court to review draft board classifica- tions on religious grounds. The central problem became one of establish- ing the extent to which such classifications are reviewable by the courts. In these cases, Frankfurter felt that even in silence Congress had placed exclusive determination of these issues in the hands of the Selective Service System. This represents a total reversal of his Search and Seizure position, at least in terms of deference to legislative directives. Other members of the Court were comparably "at-odds“ with behavior exhib- ited in these unlocated sets. The two other cases in the set, Singer v. United States125 and Keegan v. United States,126 address similar though not identical ques- tions. The Singer case focuses on the construction issue with the dis- sent taking the position that the Court should give criminal statutes the narrowest possible construction. The Reagan case found a five-Justice maJority reversing conviction of a number of GermaneAmerican Bund leaders for counseling draft evasion or resistance over the obJections of the improbably aligned group of Douglas, Jackson, Reed, and Stone. 0. Socio-Political Background Analysis The United States Supreme Court presents critical research problems to the sonic-political background analyst of Judicial behavior. Its limited membership, the historical instability of the socio-politieal background variables themselves as well as the substantive issue content of the cases reviewed, and the "mystique“ surrounding the Supreme Court are some of the factors which have either discouraged inquiries altogether or inhibited the generalizability and validity of attempted research. As a result, most of the studies which deal with social background variables have tended to be I) exclusively descriptive with no real attempt to deal 1148 with manifest behavior of the Justices,127 focused upon Judicial bodies other than the Supreme Court (primarily state supreme courts and lower ~federal courts),128 examination of processes and criteria of methods of Judicial selection,129 or descriptions of Judicial attitudes reflective of values for use in inter-system comparative studies.”0 The few studies which have attempted to relate social background variables to decisional behavior of the United States Supreme Court have failed to produce positive results.”1 A maJor handicap to any researcher attempting to examine socie- political correlates, as mentioned in Chapter Two, is insufficiency and scarcity of refined background data. The researcher is limited to essentially the microscOpic entries on the conventional biographical reference volumes. Aside from general absence of data, the resultant prdblems cannot be overcome when dealing with the Supreme Court as they often can when considering lower courts. The practice with the latter is merely to expand the number of subJects. This, however, is a long- standing problem132 though future efforts ought not be abandoned because no improvements have emerged in the intervening years. The socie-political background analysis was undertaken.here primarily because of the recent developments in the study of Judicial behavior. As a result of more rigorous and refined analytic techniques develOped in the past decade, the possible payoffs of reconsidering the relationship(s) between socio-political background characteristics and empirically de- fined decisional behavior was indicated. In a preliminary study, the author was able to find significant relationships between such.variables as political party affiliation and geographic region and decisional pro- pensities.133 1&9 The socio-political background analysis was conducted upon the two primary dimensions — Judicial Power and Governmental Regulation. Because of the special character of the third dimension (described on the previous page), it was excluded from both the background and the cluster-bloc analyses. The socie-political background variables used in this analysis were selected in terms of data availability for all eleven Justices of the Stone Court. Nine variables were ultimately chosen for analysis. The nine variables are party affiliation, reputation as a dissenter (Zobell and Evans Index as reported in Schmidhauser), previous active political experience or public office(s) held, size of town or city of birth, geographic region in which the Justice was raised, academic standing of the institution from which a Justice received his legal training (using the Schmidhauser typology of apprenticeship, average standing, or high academic standing), religious affiliation (using the high, intermediate and low social status categories from Schmidhauser), ethnic background, and type of lawyers primarily associated with prior to Supreme Court appointment.13h Each variable was subJected to both parametric and nonparametric tests of statistical significance by using scale scores and scale ranks, respectively. Both ranks and scale scores were dichotomized into "high" and "low“ categories using the mean dimension scale ranks and scale scores as break-points.”5 Four-fold tables (2x3 tables for the triohotomized variables) were constructed for each variable, and a chi-square and contingency coef- ficients were computed for each. Individual mean ranks and scale scores were then used in the computation of the parametric t-test with compar- isons being made between the two measurement levels. Each rank and 150 scale score from each Justice on every dimension-component scale was considered as a separate observation. The central difference in the voting behavior of the Stone Court members was found along the political party affiliation dichotomy. Table 17 indicates the scale rank and scale score cell frequencies for the party affiliation dichotomy. The Democrats showed a strikingly greater propensity to dupport extensive exercise of Judicial power (a pro-Judicial activism position), and broad regulatory powers of both TABLE 17 Cell Frequencies for the Party Affiliation Dichotomy BANKS Democrats Republicans Totals Judicial Power High 91 13 10h Lew' h6 60 106 Totals 137 73 210 Governmental Regulation High 128 3 131 Low to 81 121 Totals 168 8h 252 SCALE SCORES Democrats Republicans Totals Judicial Power High 92 17 109 Low’ h3 5h 97 Totals 135 71 206 Governmental Regulation High 129 10 139 Low 35 7k 109 Totals 16h 8h 2&8 state and federal levels of government. Both the parametric and non- parametric significance tests reflect these differences. Table 18 pro- vides the chi-square, contigency coefficients, and tdvalues for the party affiliation variable. Even the exclusion of Frankfurter from considera- tion because of the lack of certainty of his party affiliation found the remaining manifest behavior significantly different when out across the 151 partisan lines. TABLE 18 Party Dichotomy Significance Test Results Chi-Squares and Contingency Coefficients RANKS x2 P df 0 Up Limit Judicial Power h3.102 .001 1 .h13 .707 Governmental Regulation 115.h20 .001 1 .56h .707 SCALES SCORES JudiCial Pour 3h 0 739 e001 1 e 380 e 707 Governmental Regulation 97.780 .001 l .533 .707 T-Test Values RANKS Mean T df P df Judicial Power 13.31 206 .001 ** Democrats b.23 Republicans 7.30 Governmental Regulation 29.3h 2h8 .001 ** Democrats 3.89 Republicans 8.17 SCALE SCORES Judicial Power 12.73 20h .001 ** Democrats .686 Republicans .330 Governmental Regulation 30.08 2&6 .001 ** Democrats .7Sh Republicans .207 Despite the conclusive results of the examination of the political party affiliation variable as related to the manifest decisional propen- sities, the actual behavioral impact of party affiliation remains unclear. While Ulmer and Schubert have demonstrated that Republicans and Democrats acted as separate blocs on the Michigan Supreme Court,136 the tightness of the partisan blocs from the Supreme Court are somewhat less evident. Rather, the ideological positions seem more determinative of behavior with party associating highly though not completely. David W. Adamany develops this distinction quite fully and appropriately in terms of the 152 Stone Court case.137 Statistically significant differences were also found when the political/public office experience, geographic region, academic standing of legal institution, and legal associations variables. These differ- ences were found for both the Judicial Power as well as Governmental Regulation dimensions. The religious affiliation variable produced a significant difference for the Governmental Regulation dimension only. There was substantial category overlap, however, among these variables and the political party affiliation dichotomy. No significant differences were found for any of these variables when party affiliation was controlled. The inferential limitations of this type of analysis upon the Supreme Court are revealed at many points. Aside from the data inadequacies previously discussed, another serious difficulty in this analysis re- sults from the inability to treat interactions among or between these variables. Each of the variables was treated independently with the exception of the attempt to control for party affiliation. The extremely small cell size precluded otherwise examining these data. Clearly, then, there is no legitimate way in which any kind of casual inference can be drawn from these findings despite the statistically significant differ- ences produced. That several variables did reflect potentially useful explanatory relationships suggests that renewed efforts be directed toward socio- political background analyses. At the same time, nothing of value will be forthcoming until a systematic and refined body of background data is developed. The relationships which were found in the current effort stem from the improved techniques used in defining decisional behavior. The findings produced by such efforts will continue to only limited utility if the highly gross data currently available in not supplemented 153 substantially. Several additional comments concerning socio-political analyses will be offered in Chapter Five. D. Cluster-Bloc Analysis The two primary dimensions were also utilized in an examination of the cluster-bloc alignments of the Stone Court members. A bloc analysis of the 19h1-hS Terms had been undertaken by Pritchett.138 The analysis of Pritchett was replicated here because Pritchett focused on the Court's voting patterns on a term—by-term basis rather than longi- tudinally. More important, however, was Pritchett's categoric rather than empirical definition of the components of the blocs. Pritchett's analysis, in other words, was issue rather than behavior oriented. The obJective of the current cluster-bloc analysis is a comparison of the blocs between the two primary dimension, and a comparison with the blocs suggested by Pritchett. Three cluster-blocs were constructed. First, a fiveaterm bloc was generated using the Index of Interagreement between each pair of Justices using all sixty scale-sets. Second, a bloc was prepared using only the Index of Interagreement from those cases which located on the Judicial Power dimension. Finally, a similar bloc was constructed from the cases within the Governmental Regulation dimension. Each vote which was cast, even in multiple decisions, was used in the building of the Indices of Interagreement. This represents a substantial departure from the metho- dology of Pritch.tt.139 The bloc matrices for the entire five-term period as well as the two dimensionebased blocs are composed of ratios of interagreement. A matrix of interagreement frequencies was completed for each of the three blocs with the frequencies subsequently being.bransformed into ratios. 15h The ratios were computed for each dyad by dividing the frequency of identical voting by the total number of shared participations. This method allows for the comparison of all pairs despite missing data resulting from less than five-term service of Justices Byrnes, Roberts, Rutledge and Burton. Table 19 contains the interagreement frequencies for all non- unanimous cases decided by the Stone Court during the l9hl-h5 Terms. Table 20 transforms these frequencies into ratios or percentages. These alignments correspond closely to Pritchett's results though com- puted by an alternate method. Two distinct blocs emerge using Schubert's .700 criterion for high interagreement.1h° The first is the four-justice liberal bloc (Pritchett's "left bloc") composed of Justices Black, Douglas, Murphy, and Rutledge. The conservative (or "right bloc“) in- cludes Justices Jackson, Frankfurter, Reed and Stone. Byrnes occupies a middle position between the two blocs with moderately high interagree- ment with members of both blocs. Burton is a marginal member of the right bloc while Roberts is not highly identified with either though he clearly agrees very little with members of the left bloc. While Roberts does have interagreement ratios of greater than .500 with all members of the conservative bloc, only his interagreement ratio with Frankfurter (.623) falls within the moderately high category. The lower ratios for Roberts are a product of his numerous single dissents. Roberts dissented in 30% and 361 of the cases decided by the Court during his last two terms. No other single member of the Court dissented in more than 19% of the Court's cases in any single term. Roberts was found in single dissent in 95 cases over the feur terms he eat. The next highest number of single dissents was 19 by Justice Hurphy, a figure which encompasses five rather than four terms. lA resume of the percentage of times in 155 INTERAGREEMENT FREQUENCIES (All Cases) TABLE 19 EUR ROB BLK DOU HUB RUT BYR JAC REE FRK STO 16 BLACK 17 S97 DOUGLAS Son 19 35? ‘666 502 MURPHY 7 fig 371 395 353 RUTLEDGE BIRNES 11 to 65 277 275 262 2&9 'EIE ‘STU '3T5 '351 JACKSON 16 62 363 h9b '55 '35? ‘75? 286 287 313 261 683 'SBI"37T"3§I FRANKFURTER 15 h? 35h 500 hBh §5"3§E '6§5 ‘755 STONE 52 §8 h9 '§5 57 162 BURTON 329 W 95 to 263 293 3&8 7ET'E§7 '56! '55§"35§ 103 112 138 108 536"SEE '533"55I ROBERTS TABLE 20 INTERAGREEMENT RATIOS (All Cases) BLK DOU MUR RUT BYR JAC REE BUR STO FRK mucus 89o MURPHY 773 757 RUTLEDGE 770 709 808 BYRNES 667 589 583 m JACKSON 53? 531 511 637 667 REED 593 592 551 618 6hl 712 BURTON SS9 885 531 185 m 625 667 STONE 875 M8 511 513 Shh 676 719 80h FRANKFURTER 1116 ha 1:66 501 639 686 701; 670 691 ROBERTS 187 206 258 269 Shl 529 521 m 589 623 which a Justice was found in dissent generally is provided in Appendile. The frequencies of single dissents are found in the principle diagonal of the interagreement frequency tables. Tables 21 and 22 provide the interagreement frequencies and ratios for the Judicial Power dimension blocs. The bloc memberships remained as they were in the five-term bloc although there were some changes in terms of the interagreement ratios themselves. The left bloc Justices are more tightly clustered in the Judicial Power bloc with most of the ratios varied little with any of the left bloc Justices. The conservative bloc is less tightly clustered and Roberts is found somewhat closer than his position in the overall bloc. It seems clear that there was extremely great consensus among the four liberal Justices in terms of the policy capabilities and assertiveness propensities of the Supreme Court, and the Justices' willingness to participate consciously in substantive policy TABLE 21 BLACK IDUGLAS MURPHY RUTLEDGE BIRNES JACKSON REED FRANKFURTER STONE RTE-TON ROBERTS INTERAGREEMENT FREQUENCIES — JUDICIAL POWER ELK DOU MUR RUT BYR JAC REE FRK STO BUR ROB 0‘ R” N (D N O «I E! fl 3...: fl 0\ Es as as as §§ Rs as a N 0 V1 C9 Ea as as as as ea as as Rs: 172 22 98 lho 108 . 165 ESE ...: i “ ‘sl: 3% an gt? a; 208 lb 273' 12h 209 177 266' 26§"§76’ Eat; a:- so :12 E 2h 17 35 '35 1 5‘ 110 1 1h8 186’ fig%' 268' tile. 6 25 1 35 51%MZ9 158 TABLE 22 INTERAGREEMENT RATIOS - JUDICIAL POWER BLK DOU EUR RUT BYR STO BUR REE JAC FRK DOUGLAS 89!; MURPHY 805 798 RUTLEDGE 826 797 869 BIRNES 667 583 579 m STONE 552 603 650 65h 59h BURTON 511: 531 59h 531 m 781 REED h78 hhb 5&3 625 730 777 750 JACKSON MB 392 MI 503 778 602 500 7115 FRANKFURTER 305 309 hlh h27 632 656 531 75h 713 ROBERTS 11:? 1b? 255 208 333 Shl m 635 591 725 formulation. The combined left cluster interagreement is .832 while the four-Justice conservative cluster is only .711 in comparison. It should be noted, however, that both mean interagreement ratios are in excess of Schubert's minimum. The three marginal conservative members are excluded from the computation of the right bloc mean ratios. Comparable findings were secured from the consideration of the Governmental Regulation dimension. Tables 23 and 2h present the inter- agreement frequencies and ratios of interagreement found for the Govern- mental Regulation cases. Again, the left bloc is tightly clustered as the within-cluster interagreement is a very high .853. Jackson is found, however, to agree with both Rutledge, a left bloc member, and Byrnes at a much.higher level than in the other matrices. The within-right bloc mean ratio is close to that found in the Judicial Power cases (.712). Rutledge has a .730 agreement ratio with Stone in addition to his .763 159 TABLE 23 INTERAGREEMENT FREQUENCIES - GOVERNMENTAL REGULATION BLK DOU MUR RUT BYR FRK JAC STO REE BUR ROB BLACK 5 P nouoms 251. 5 ~ 276 MURPHY 233 233 10 2'76 2'77 ‘ RUTLEDGE 17k 172 171 1 ‘ 209 m 01 E BYRNES 29 27 26 m 0 E5 E9 55 mmm-:11 112 110 107 111 36 0 2'75 2'76 HE E JACKSON 156 151 1h1 135 28 16R 0 2'36 233’ 235 m 37 2'38 STONE 91 .92 9h 86 25 211 168 6 2'77 2'78 2'78 212 ‘56 2'83 2'36 REED 159 155 151 1h3 2b 199 169 195 0 276 277 278 213 E9 2‘82 236 279 BURTON 2119lglgm213g150 ”56333333 3333135 ROBERTS 21 2 2 1. 18 1118 89 170 120 m 35 231' 255 23: fit 39' 231: 223 235 252 160 TABLE 2h INTERAGREEMENT RATIOS - GOVERNNENTAL REGULATION BLK DOU MUR RUT BYR JAC REE BUR FRK STO DOUGLAS 920 MURPRI 8M; 8111 RUTLEDGE 833 811 851 BYRNES 61117 551 520 we JACKSON 661 6h8 600 763 757 REED 576 S60 5113 671 h90 716 BURTON 583 576 303 39k *** 1000 FRANKFURTER 1107 399 386 519 706 689 706 818 STONE 329 331 338 730 500 712 699 677 7&6 ROBERTS 091 109 136 195 1762 399 517 m 632 739 ratio with Jackson and his continued his agreement with the remaining members of the left bloc. There is no other traversing of bloc lines of any consequence. The remaining aspect of the Pritchett bloc analysis is a comparison of blocs on a term-by-term basis. Separation by terms runs counter to a basic strength of the dimensionality analysis developed longitudinally; thus, it is not reconsidered in the present examination. Nevertheless, the term-by-term work of Pritchett did reflect some individual pair var- iance in terms of interagreement ratios. For example, across the five terms, the interagreement between Justices Black and Douglas decreased a little each year - the percentage interagreements went from 95% in l9hl, to 93% in l9h2, to 86% in l9h3, to 79% in l9hh, to 71% in l9h5. The longitudinal perspective is clearly insensitive to these kinds of variance. A termébyiterm comparison using the empirically defined dimensions might indicate the substantive location of the increasing or decreasing 161 interagreement between particular pairs. Pritchett's term-by-term interagreement ratios for each of the five terms are reproduced in Appendix I. No significant differences were noted between the clusters found by Pritchett using his substantive issue orientation and the present analysis utilising the two empirically determined dimensions. The cluster-bloc analysis, nevertheless, does provide a useful description of the voting alignments of the Stone Court members. Cluster-bloc analysis, like other small group techniques, cannot provide pattern explanation in the absence of other data. The bloc analysis under- taken here, given the character of the techniques used throughout the research, can be viewed with substantial confidence in that the voting alignments reflected herein are clearly not the products of random associations. Thus, this bloc analysis provides a helpful descriptive addition to this research generally. Further comment on bloc analysis outside the context of the consideration of the Stone Court is provided in Chapter 5. 7. 8. 9. 10. 15. 16. 17. 18. 19. 20. 21. 22. 23. 2h. 25. 26. 27. 28. 29. 30. 31. 32. 33. 3h. FOOTNOTES Spaeth, Harold J., "Unidimensionality and Item Invariance in Judicial Scaling," Behavioral Science, X, 1965, pp. 290-30h. MbNemar, o . cit., p. 205. Ibid. SIegel, OE. cit., pp. 219-22. Grumm, Jo n G., "A Factor Analysis of Legislative Behavior," Midwest ‘Jgurnal of Political Science, VII, November 1963, pp. 336-56. MacRae, Duncan, Jr., and Susan B. Schwarz, "Identifying Congressional Issues by Multidimensional Mbdels," Midwest Journal of Political Science, XII, May 1968, pp. 181-201. AIEer, Haywood R., Jr., "Dimensions of Conflict in the General As- sembly," American Political Science Review, LVIII, September l96h, pp. 6h2-57: Russett, Bruce M., "Discovering Voting Groups in the United Nations,’I American Political Science Review, LX, June 1966, pp. 327-39. Rummel, R.J., "Dimensions of 0331i” Behavior with Nations, 19116-59," Journal of Conflict Resolution, X, no. 1, March 1966, pp. 65-73. Rummel, R.J., A lied Factor’Knal sis, Evanston, Illinois: North- western UniversEEy FFEss, I975, CERpter 15, especially sections 15e2 and ISehe Schubert, Glendon, The Constitutional Polity, Boston: Boston Uni- versity Press, 1970. Pritchett, Roosevelt Court, Chapter 10. Mason, Alpheus T., TE; Supreme Court: From Taft to Warren, revised edition, Baton Rouge:*Louisiana State University Press, 1968. Toucey v. New Life Insurance Company, Tax Commission of Utah v..Ald- rich, Williams v. North Carolina, Murdock v. Pennsylvania, West Vir- ginia State Board of Education v. Barnette, Smith v. Allwright, United States v. South-Eastern Underwriters, and Girouard v. U.S. harsh v. Alabama, 326 US 501 (19b6); Tucker v. Texas, 326 US 517 (19h6). Schubert, Glendon, "Civilian Control and Stars Decisis in the warren Court," in Glendon Schubert ed., Judicial Decision-Making, 10c. cit. Nilliams v. Kaiser, 323 US 1,771 (19W, onplins vrfifa'nuri, 323 US h85 (19h5), House v. Mayo, 32h US h2 (19h5), and Rice v. Olson, 32h US 786 (19175). Williams v. Kaiser, 323 US A71 (l9h5), dissenting opinion. West Virginia State Board of Education v. Barnette, 319 US 621. (19173) . Ibid. iInersville School District v. Gobitis, 310 US 586 (l9h0). Barnette, 319 US 62h, loc. cit. In re Tamashita, 327 US 1 (l9h6). Ibid. Ibid. 328 US 5&9 (19h6). 322 US 533 (19hh)o Ibid. Ibid. Ibid. Ibid. Ibid. Schubert, The Constitutional Polity, pp. 3h-35. Ibid. 162 163 3Se SChUth, 1°°e Cite 36. 323 US 2h8'II9EE). 37. 315 US 357 (l9h2). 38. 317 US 200 (l9h2). 39. 321 US 321 (19kb). NO. Pritchett, The Roosevelt Court, p. 182. A1. Thiel v. Southern Pacific Company. 328 US 217 (l9h6). h2. 31h US 118 (19h1). A}. Supreme Tribe of Ben Bur v. Cauble (1921). hh. 316 US 7h (19h2). h5. Ibid. A6. United States v. Carolina Freight Carriers Corp., 315 US N75 (19h2). N7. Borden v. Bordella, 325 US 679 (l9h5), and 10 East hOth Street f3 Building v. Callus, 325 US 578 (19h5). h8. Pritchett, The Roosevelt Court, p. 205. A9. 315 US 575 (19h27. - 50. 320 US 591 (19th). 51 ICC v. Jersey City, 322 US 503 (19hh). 52. 325 US 538 (1985)- 53. 318 US 285 (l9h2). 5h. New York v. United States, 326 US 572 (19h6). 55. 322 US 327 (19hh)- 56. 327 US D16 (1986). 57. 32h US 652 (l9h5)o 58. Schubert, Glendon, Judicial Policy-Making, pp. 153-57. 59. 320 US 1 (19h3). 60. 320 US 297 (19h3). 61. Black's rank could have possibly been as high as a tie for second in this set if warranted by Opinion behavior as this case was ex- panded on the basis of separately offerred opinions for the purposes of breaking rank ties involving Justices Murphy, Douglas, Stone, and Frankfurter. 62. 328 US 6h0 (l9h6). 63. Schubert, Glendon, The Judicial Mind, especially Chapter 5, Spaeth, Harold J., The Warren Court,SanIF?3ncisco: Chandler, 1966, espec- ially Chapter 2, and Spaeth, Harold J., Introduction to Supreme Court Decision Making, San Francisco: Chandler, 1971, pp. 66-69. 6h. Spazgh,flirdld J.,—Introduction to Supreme Court Decision Makin , p. e 65. Pritchett, The Roosevelt Court, pp. 77-78. 66. Kelly, A1fred’H., andIWiEfred‘A. Harbison, o . cit., p. 769. 67. Unions: Closed Shep, Unions: Solicitation, UEIons: Bargaining Agents, Personal InJUry Liability, Fair Labor Standards Act: Contracts, Federal Employer Liability Act, National Labor Relations Act, Ad- ministrative Deference, and Delegation of Legislative Power. 68. 323 US 2h8 (19th). 69. Virginia Electric Power Company v. NLRB, 319 US 533, (19h2). Medo Photo Supply v. NLRB, 321 US 678 (l9hh), and J.I. Case Company v. NLRB. 321 US 332 (19hh)- 70. Hunt v. Crumboch, 325 US 821 (19h5). 71. Hotel &.Restaurant Employees' Union v. Wisconsin Employment Relations Board, 315 US 837 (19h1), and Thomas v. 061116., 323 US 516 (19h5). 72. 317 US 2N9 (19h2). 73. 326 US 327 (19kb). 7h. Marconi'Wireless Telegraph Company of America v. United States, 320 US 1 (19173). UT 75- 76. 77. 78. 79. 81. 82. 83. 8h. 85. 86. 87. 88. 89. 91. 92. 93. 9h. 95. 96. 97. 98. 99. 100. 101. 102. 103. 10k. 105. 106. 107. 16h Ex Parts Peru, 318 US 578 (19h3). United States v. Pink, 315 US 203 (l9h2). 32h US 2th (19h5). Pritchett, The Roosevelt Court, p. 170. Ibid. Mabee v. White Plains Publishing Company, 327 US 178 (19h6). 325 US 797 (19h5). United States v. Local No. 807, 315 US 521 (l9hl). 319 US 598 (l9h3). 323 US 516 (19h5)o Ibid. Stewart v. Southern Railway Company, 315 US 283 (19h2), National Labor Relations Board v. Indiana & Michigan Electric Company, 318 US 9 (19h3), DeZon v. American President Lines, 318 US 660 (1983), Bailey v. Central Vermont Railway, 319 US 350 (19h3), Brady v. Southern Railway Company, 320 US h76 (l9h3), and Asbury Hospital v. Cass County, 326 US 207 (l9h6). Pence v. United States, 316 US 332 (19h2 raised the issue of whether a directed verdict in a case in which the question of fraud was Sub- mitted to a Jury actually denies Jury determination of the issue. Akins v. Texas, 325 US 398 (19h5) examined the issue of racial com- position of Juries, and the legal equivalence of racial limitations and racial exclusion relative to the equal protection clause. 323 US 21h (19h3). 327 US 1 (19u6). 327 US 20h (l9h6). Knauer v. United States, 328 US 65h (19h6), and Baumgartner v. United States, 322 US 665 (l9h3), for instance, both involved allegiances to Germany, and the possibility of having fraudulently obtained citi- senship initially given these allegiances. Bridges v. Wixom, 326 US 135 (19hh), and Schneiderman v. United States, 320 US 118 (l9h3) were cases which involved considerations of naturalised citizenship of Communists and their ability to fulfill the statutory requirements fer naturalization. See, fbr example, Jackson's dissent in'Wallace Corporation v. NLRB, 323 US 2&8 (19uh). Douglas's dissent in Kennecott COpper Corporation v. State Tax Commission, 327 US 573 (l9h6) is illustrative. Rutledge's Supreme Court Jurisdiction behavior can be readily identified in Asbbacker Radio Corporation v. FCC, 326 US 327 (l9h6), and Marconi Wirless Telegraph Company of America v. United States, 320 US l (19h3). Other cases provide comparable demonstration of set behvior. 317 US 135 (19h2)- Group of Institutional Investors v. Chicago, Milwaukee, St. Paul and Pacific Railroad, 318 US U15 (19h3). Kelley v. Everglades Drainage District, 319 US ulS (19h3). 323 US 365 (19h5)- 322 US 1A3 (19hh)- 32h US 801 (19h5). 327 US U37 (19h6)- 318 US 80 (19h3). 316 US A (19h2). SEC v. Chenery Corporation, 318 US 80 (19h3). PritchOtt’ O o Cite, pm 1960 Scripps-Howagd Radio v. FCC, 316 US h (l9h2). m lb'ia I. L 108. 109. 110. 111. 113. 11h. 115. 116. 117. 118. 119. 120. 121. 122. 123. 12h. 125. 126. 127. 128. 129. 130. 131. 132. 165 National Broadcasting Company v. United States, 319 US 190 (l9u3). 319 US 190 (1983). 316 US 1707 (19112). Pritchett, 0 e cite, ppe 79-90e 325 US 293 . See such cases as California v. United States, 320 US 577 (19h3). and Southern Pacific v. Arizona, 325 US 761 (19h5). 319 US 590 (19h3). 326 US 521 (19h6). 327 US h7h (19h6). Ibid. Mahnomen County v. United States, 319 US h7h (19h3)- 325 US 91 (19h5). .1 Goldman v. United States, 316 US 129 (19h2). Goldstein v. United States, 316 US 11h (19h2). 328 US 582 (19h6). 328 US 62h (19h6). Falbo v. United States, 320 US 5N9 (19kb), and Estep v. United States, 327 US 11h (19kb). 323 US 338 (19hh)- 325 US U78 (19h5). Among these works are Ewing A.M. Cortes, The Judges of the Supreme Court, 1789-1937, Minneapolis: University of Minnesota Press, 1938; REdney'L. Mbtt, et. al., "Judicial Personnel," Annals, 1933; John R. Schmidhauser, "The Justices of the Supreme Court," Midwest Journal of Political Science, 1959; and S. Sidney Ulmer, "Public Office in the Social Background of Supreme Court Justices," The American Journal of Economics and Sociolo , 1962. Such works ineludES Stua S. Nagel, "Testing Relations Between Judi- cial Characteristics and Judicial Decision-Making," Western Political Quarterl , 1962; Nagel, "Ethnic Affiliations and Judicial Propen- sItIes," Journal of Politics, 1962; "The 'Packing' of the Michigan Supreme Court,a IE Glendon'Schubert, ed, Judicial Behavior; and S. Sidney Ulmer, "The Political Party Variable in the Michigan Supreme Court, Journal of Public Law, 1962. See such—workfi as Kennetfi N. Vines and Herbert Jacob, Studies in Judicial Politics, New Orleans: Tulane University Press, I963; Herbert JacoE, "The ETTect of Institutional Differences in the Recruitment Process," Journal of Public Law, XIII, l96h, pp. th-l9; and Herbert Jacob and KennetE N.‘Vines, ed§., Politics in the American States, Boston: Little, Brown, 1965, pp. 257-67. Dator, James A., "The Life History and Attitudes of Japanese High Court Judges," Western Political Quarterlf, 1967; Donald Matthews, The Social Backgrounds 0 Po itica cis on Makers, New YOrk: Random House, 195k; Stuart 3. Nagel, "Off-the-Bench Judicial Atti tudes," in Glendon Schubert, ed., Judicial Decision-Makigg; and Ulf Torgerson, "The Role of the Supreme Court in the Norwegian Political System," in Glendon Schubert, ed., Judicial Degision-Makin . Pritchett, C. Herman, The Roosevelt Court; and S. Sidney U mer, "The Analysis of Behavior Patterns of tfie UHIted States Supreme Court," Journal of Politics, 1960. Mbtt, et: al., lament this state of affairs as long ago as 1933, but even recent attempts to collect social background materials such as the effort of’John.R. Schmidhauser have provided only organisational aid rather than additions to or enrichment of this data. Schmidhauser's 133. 13b. 135. 136. 137. 138. 139. 1h0. 166 data is essentially a compilation of materials from the convential sources. There are several excellent biographies available on indivi- dual Supreme Court Justices, but it is difficult to integrate much of the materials therein contained because of varying descriptive cri- teria of each author. A pro-analysis trial was given to the same socio-political variables using decisional behavior findings determined by the same methodolo- gical techniques with a ten-year sample of decisional behavior of the warren Court, and the findings were encouraging enough to suggest a similar effort in the current research. Schmidhauser, "The Justices of the Supreme Court," op. cit. The data were made available through the Inter-University Consortium for Boli- tical Research at the University of Michigan in Ann Arbor. p:e Mean scale ranks and scale scores used as break-points: Mean Rank Mean Scale Score Judicial Power Dimension 5.279 .563 Governmental Regulation Dimension 5.328 .569 Schubert, Glendon, Quantitative Anal sis of Judicial Behavior, Glencoe, Illinois: TE; Free Press, , pp. 129-h2; and S. Sidney Ulmer, "The Political Party Variable in the Michigan Supreme Court," Journal of Public Law, II, 1961, pp. 352-62. Adamany, David W., 5The Party Variable in Judges' Voting: Conceptual Notes and a Case Study," American Political Science Review, 63, no. 1, March 1969, pp. 57-73- Pritchett, The Roosevelt Court, loc. cit. The Pritchett‘teéhnique and current modifications are discussed in Schubert, Quantitative Analysis, Chapter 3. Schubert, Glendon, Quantitative Analysis of Judicial Behavior, p. 91. He considers ratios 0? .65-i69“to moderately high and ratios of less than .60 to be low. 1m .4 CHAPTER FIVE - CONCLUSIONS AND REFLECTIONS The controlling purpose of this research has been the empirical f:- determination and substantive interpretation of the decision making of the Stone Court. Three areas of interest have been maintained throughout the conduct of this research. The first area has been the Stone Court itself. What is the character of Supreme Court decision making for these five term, and how does it relate to adJacent his- torical periods? The second area of concern has been the adequacy of the stimulus-response model. What can be determined about judicial behavior from its application, what are the limitations of the model, and how does it compare to Pritchett's initial inquiries relative to the Stone Court? Finally, there has been a strong interest in the utility of the methodological techniques employed. These are clearly related areas of academic concern and assume equivalent importance in terms of this research. The final chapter reflects upon each of these three areas of emphasis. A brief recapitulation of the hypotheses and findings may be in order befhre proceeding to the concluding remarks. The basic hypotheses were stated very generally in Chapter One. First, it was hypothesised that it is empirically possible to reduce the numerous issues that appear in the cases on the Supreme Court's docket to a relatively small number by focusing on the psychological bases of Judicial be- havior. Sixty Guttman scales were produced from the universe of feur 167 168 hundred eighty-five cases classified. The computer analyses conducted on the data revealed three underlying dimensions - Judicial Power, Governmental Regulation, and Administrative Oversight. Only five of the scale-sets could not be located on at least one of these three underlying dimensions. Second, a multi-dimensional solution was hypothesised in terms of the general decision making structure. A complex (non-unidimensional) structure was found for the Stone Court although the dimensions were ...-mj not seen as discrete as those found in studies of subsequent terms. The Stone Court was concluded to occupy the transitional ground between the unidimensional Hughes Court, and the multi-dimensional Vinson and warren Courts. The complex decision making structure of succeeding courts, but absent prior to the Stone Court, clearly indicates the genesis of multi- dimensionality during the 19h1-19h5 terms. It was also hypothesised that attitude differences could be found to exist among Justices thought to be ideologically compatible at the time of their respective appointment to the Court. The results of the scale, factor, and cluster-bloc analyses reveal that the appointees of Franklin D. Roosevelt did not vote as a cohesive unit. Rather, they fragmented markedly on each of the three dimensions despite the assumed comparable commitment to Roosevelt, the New Deal, and liberalism in general. Finally, it was hypothesised that the results of the social back- ground and bloc analyses would produce more predictive results than had been found heretofore because of the highly refined techniques of analysis used in this research to measure the decisional behavior. Neither the social background analysis nor the cluster-bloc analysis provided signif- icant payoffs. The only correlate of decisional behavior having predictive 169 capability is political party'affiliation. The other variables used re. flected no significant behavioral differences when party affiliation was controlled. It was concluded that conventional social background vari- ables are still too gross to allow productive analyses of this type regardless of the precision of measures of behavioral propensities. The bloc analysis was similarly disappointing. No striking difference was seen when the empirically defined dimensions were substituted for the categorically defined data used by Pritchett in his seminal work on the Roosevelt Court. It was stated at the outset that substantial changes have taken place in Judicial behavior research in the past decade and a half. The literature is replete with characterizations of these changes. Here often than not, these discussions have taken the fern of attacks upon or defenses of these changes. It is not the intention of this concluding chapter to address the question in this manner or engage in such polemics. Nevertheless, several observations have been noted during the course of this research which require at least brief additional attention. The attitudinal approach to what in systems analytic terms is called “conversion" has develOped remarkably since Pritchett first considered the problem. The primary thrust of the attitudinal approach, as can be seen in this research, is the identification of judicial attitudes for the purpose of discovering behavioral patterns. The general efficacy of the approach (and the stimulus—response model specifically) can be seen in several recent analyses in which multi-dimensional solutions that account for extremely high proportions of variance are reported.1 The general emphasis on the relationship of attitudes and decision making is in itself striking witness to the theoretical directions that currently exist within the sub-discipline. The identification and analysis 170 of Judicial attitudes has been a primary research focus since the work of Pritchett. The current status of the attitudinal approach is well conveyed in the following, "It is beyond serious question today that the Judges of the Supreme Court have their own conceptions of public policy and that their attitudes and values affect the thrust of their decision making."2 Strengths as well as limitations of the approach are reflected in the statement. The limitations will be discussed shortly. The numerous methodological refinements which have been made over the past fifteen years also warrant positive mention. Characteristic of the advances are the modifications in regard to the use of Guttman scale analysis. The basic feature of scale analysis is that it allows atti- tude differentiation and the measurement of issue complexity. It provides the researcher with a standardised mode of classification of cases and issues which reflect the component stimuli to which the Judges are sub- Jected. The work of Harold J. Spaeth is illustrative of the upgrading of rigor with regard to scale analysis.3 Comparable methodological developments can be found relative to each of the specific techniques utilised in this research. The substantive findings produced by the various analyses of this research also demonstrate the utility of the attitudinal approach. The interpretations of the empirical findings allow for consideration of numerous propositions found in the literature. The notions suggested by Dahlh and Schuberts regarding the policy relationship of the Supreme Court to other policy-making institutions provide an apt example. Dahl and Schubert both argue that the policy priorities of the Court and other policy-making authorities with whom the Court shares policy-making power usually coincide. It is rare to find the dominant policy view of the Court "out-of-phase" with those views of the Congress V 171 and/or the President, at least for extended periods of time. The regu- larity of appointment opportunities normally ensures a President being able to "shape" a particular Court. The circumstances surrounding the appointment "drought" suffered by Roosevelt during his first term are clearly viewed as atypical. Despite the visibility of Roosevelt's difficulties with the pre- 1937 Hughes Court, Dahl's formulation concludes that where the Court f3: does inhibit national maJorities from passing legislation, the Court is exercising Judicial review in an undemocratic fashion. Dahl further suggests that when the Court tries to exercise inhibiting (or Prohibiting) controls over national policybmaking maJorities, the Court cannot with- E, stand persistent challenges from a concerted coalition of the legislative- executive branches.6 The basic thrust of Dahl's discussion is that the Court “is inevi- tably part of the dominant national alliance."7 Exceptions are rare and usually brief. The Court is viewed as being in a unique position. It is able to add a special kind of legitimacy to those policies which emerge from the dominant national maJority. The ongoing ability to provide this stamp of legitimacy stems from a perception of the legitimacy of the Court itself. Thus, if the Court is to exercise its policy influence through the exercise of Judicial review, it cannot ignore dominant priorities or contest for a protracted period of time.8 Accordingly, the Court's policy preferences are usually quite compatible with those of other policy makers. Schubert's description of the policy relation- ship is cast in terms of harmony-disharmony, but the argument is that coinciding policies reflect normalcy.9 The decisions of the Stone Court is a clear manifestation of a desire to return to normalcy. Roosevelt had withstood four and a half 172 terms during which the Court essentially exercised veto power over his New Deal programs though some losses were marginal.10 The Hughes Court made its celebrated policy switch without personnel change. Roosevelt guaranteed the permanence of this policy change by making seven appoint- ments between 1937 and l9hl which left Justices Stone and Roberts as the only holdovers. If Dahl's proposition is accurate, the position of the Court subsequent to 1937 should have been complementary to the policy f2; orientations of the other institutions. The findings of this study indicate that this is essentially what took place. The Stone Court assumed a fairly deferential stance toward f most of the significant policy areas of the period. The concern with E: maintanence of independent Judicial power was generally not found to be inhibitive of dominant policy options. The Stone Court did clearly function as a provider of legitimacy to much of what the Roosevelt Ad- ministration wished to do. The behavior of the Court in cases having their genesis in war policy is directly indicative. The data do reveal that absolute deference was never achieved, but policy harmony was ex- hibited to a sufficient degree to support the Dahl-Schubert thesis. The findings of this research also suggest that the actual values of individual members of the Court do not change over time to any sig- nificant extent. At the same time, the positions of Justices Roberts and Stone relative to other Justices with whom they sat changed appre- ciably. Stone was found among the liberal bloc in the 1930's usually aligning with Justices Brandeis and Cardozo. Roberts was an occupant of the middle-ground along with Chief Justice Stone. The positions of Roberts and Stone in the l9b0's were at the conservative pole. The lo- cations to their left were assumed by several of the new Roosevelt ap- pointees - Murphy, Douglas, Black - and reflects the substantive 173 differences achieved in terms of policy positions of the Roosevelt appoin- tees. This proposition is well developed by Schubert.11 Another significant finding of a substantive type relates to the absence of an independent wardwar emergency dimension. Clearly, a large number of the sets and their component cases involved the war and the kinds of powers the federal government could exercise thereunder. Never- theless, the general regulatory stance exhibited in nondwar related cases Err convincingly shows that the war was not a unique governmental power con- V sideration for the Court. The specific fears which prompted the reloca- tion of the Japanese, scrutinication of natrualised citizenship, and the ‘ like were clearly war-related, but they correlate very strongly with the E: general regulation sets and mute the single significance of the war sets- cases. The other war-related sets; e.g., war Powers, Emergency Price Control Act, and Delegation of Legislative Power, fit more self-evidentally into the general regulatory scheme. The same kinds of values which allow rents to be controlled12 are also seen in such cases as Rickard v. Filburn13 which is clearly not a war-related case. The utility of the model can also be seen from a comparative stand- point. The findings of this tudy comport closely to studies conducted on Courts adjoining the Stone Court. The interpretation develOped above fits very well into a broader conception of Supreme Court decisional character- istics. The period immediately preceding the Stone Court was dominated by a single value, economic regulation (liberalism).1h The periods which immediately followed the Stone Court can be adequately characterised only in terms of a multi-dimensional type.15 The Stone Court, thus, empirically and historically occupies a transitional place. The sensitivities of the methods utilised in this research are revealed in the failure to achieve precise definition ef Stone Court decision making. This is to be expected 17h given the flux in dimensionality and has to be considered as a positive finding relative to the adequacy of the various methods used. No model, however, can be viewed in static terms no matter how strong the conceptual underpinnings seem to be. All conceptual formula- tions must continually undergo reappraisal in light of current research and adapted accordingly. The Stone Court research has revealed several areas which assume a potentially "dead-end“ direction relative to future rti utility of the model. A couple of brief comments should suffice in making the point. The stimulus-response model clearly reflects the attitudinal empha- f sis and behavior pattern identification obJective which have been shown fig, to be centrally relevant. The specific methods which normally accompany the kind of dimensionality analysis herein undertaken, however, preclude certain applications as well as the incorporation of certain perspectives which can no longer be de-emphasized. A focus exclusive of socialization, group interaction, social background, and opinion behavior may have been necessary in establishing a viable general approach, but substantial re- thinking must take place to integrate these and otherperspectives in order to develop a more comprehensive theoretical formulation. The first specific point of difficulty within the model which needs (and is currently receiving) attention is the exclusive focus on voting behavior of Judges as the basis of inferring attitudes. Joseph Tanenhaus suggested several years ago that exclusive focus on votes raises some very serious measurement as well as oversimplification problems.16 Some recent attempts have been made to respond to this criticism. The inte— gration of opinion behavior with voting behavior adds significantly to the adequacy of the model.17 Another shortcoming of the model as used in this research has been 17S pointed out by J. Woodford Howard.18 Howard suggests that something he terms "fluidity" exists relative to the decisions (votes) cast by certain members of the Court in some cases. The impact of this assertion on this research was direct and immediate because his evidence of the existence of fluidity'cane through an examination of the private papers of Justice Frank Murphy, one of the members of the Stone Court. The primary thrust of Howard's argument is that the internal dynamics of the Court, as previously suggested by walter F. Murphy,19 are respon- sible for certain voting behaviors. That this internal dynamic actually produces votes which are different from expectation (expectations of decisionsdvotes cast in the absence of this internal pressure) reflects a focus limitation of the model utilized in this research. Efforts to alleviate the current insensitivity of the model to group interaction considerations are surely necessary. Speaking to the issue of Judicial behavior research more generally, the kinds of analyses undertaken in the current study have restricted usefulness because of methodological as well as conceptual limitations. Guttman scaling, for example, has obvious value as an attitude measuring and issue classificatory device. A necessary condition for its use, how- ever, is en banc participation - aggregates are required. This requisite prevents application to the trial courts which is a severe constraint given the developing concern with other portions of the Judiciary than the Supreme Court. The lack of payoffs from the social background and bloc analyses attempted in this research are also products of conceptual and methodo- logical narrowness. The attempt to draw any kind of valid conclusions from a social background study of a body as small as the Supreme Court is well known. Yet only recently have attempts been made to link social 176 background studies more directly to the kinds of research herein tried. The recent effort by Howard to search Judicial biographies for testable propositions is a much needed integrative undertaking.20 So is the kind of dialogue between Professors Goldman and Grossman.21 It marks a much needed departure from the narrowly-focused and defensive exchanges which have inhibited theoretical develOpment in the past. The customary call for continued research along the lines traveled in this effort cannot be made here without reservation. The need to con- tinue to identify patterns of behavior per se and assign apprOpriate labels is no longer additive. The need is for synthesis and integration. The increased concern over the matter of causality; this author's per- ceived frustrations with the inadequacy of the development of the role concept relative to the bahaVior of metropolitan trial court Judges; these and many other areas have to be included within the reappraisal of the model employed in this research. The future of the sub-discipline rests with a tactical and theoretical regrouping of forces. The basic function served by this research for the author rests almost exclusively within this context. l. 2. 3. he 5. 6. 7. 8. 10. 11. 12. 13. 15. 16. 17. 18. 19. 20. 21. FOOTNOTES See especially, Spaeth, Harold J., Introduction to Supreme Court Decision Makin , Second Edition, San Francisco: Chandler, 1971, where 37% of the variance is located on three dimensions. Goldman, Sheldon, and Thomas P. Jahnige, The Federal Courts as a Political System, New York: Harper & Row, 1971, p. 157. The entire chapter (Five7highlights developments within the behavioral approach. Spaeth, Harold J., "Unidimensionality and Item Invariance in Judicial Scaling," Behavioral Science, X, 1965, pp. 290-30h. Dahl, Robert A., Pluralist Democracygin the United States, Chicago: Rand McNally, 1967,7pp. lSh-70. Schubert, Glendon, Judicial Policy-Kahlua, Chicago: Scott, Foresman, 1965, Chapter 6. 6 -6 Dahl, o . cit., pp. 1 2 3. Dahl, op. cit., p. 167. Ibid. Schubert, loc. cit. Dahl, 0 e Cite, pp. 157-60e Schuberg, Glendon, The Constitutional Polity, Boston: Boston University Press, 1970, pp. 98-10h. Bowles v. Willingham, 321 us 503 (19th). 317 US h71 (19h2). Schubert, The Constitutional Polit , pp. 92-97. Schubert, o . cit., pp. 0 - 9. Tanenhaus, fioseph, "Supreme Court Attitudes Toward Federal Adminis- trative Agencies, l9h7-56," Vanderbilt Law Review, 1h, 1961, pp. h80-82. See Schubert, Glendon, "JacksonTs Judicial Philosophy: An Exploration in Value Analysis," American Political Science Review, 59, 1965, pp. 9h0-63, and Schubert, aThiiDiiensions ofIDecisional Response: Opinion and Voting Behavior of the Australian High Court," in Joel B. Grossmma and Joseph Tanenhaus, Frontiers of Judicial Research, New York: Wiley, 1969, pp. 163’95e Howard, J. Woodford, "0n the Fluidity of Judicial Choice," American Political Science Review, LXII, March 1968, pp. h3-56. Murphy, Halter E., Elements of Judicial Strategy, Chicago: University of Chicago Press, l96h. 7 Howard, J. Woodford, "Judicial Biography and the Behavioral Persuasion," American Political Science Review, LXV, September 1971, pp. 70h-15. Tfie‘dialoguelbegan with an article by Professor Joel B. Grossman, "Social Backgrounds and Judicial Decisions: Notes for a Theory," Journal of Politics, 29, 1967, pp. 33h-51. Sheldon Goldman responded in an article, flBackgrounds, Attitudes and the Voting Behavior of Judges: A Comment on Joel Grossman's 'Social Background and Judicial Decisions,'“ Journal of Politics, 31, 1969, pp. 21h-22. Grossman re- sponded in "Further Thoughts on Consensus and Conversion: A Reply to Professor Goldman," Journal of Politics, 31, 1969, pp. 223-29. 177 LIST 01" REFERENCES LIST OF REFERENCES Adamany, David'W., "The Party Variable in Judges' Voting: Conceptual thes and a Case Study," American Political Science Review, 63, no. 1, Mt! 1969, pp. 57'73e Anderson, Lee F., Meredith W. Watts, and Allen R. Wilcox, Legislative Roll-Call Analysis, Evanston, Illinois, Northwestern UniverSity Press,'l966. Baggaley, Andrew, Intermediate Correlational Methods, New York: John Wiley & Sons, 195E. Baker, Liva, Felix Frankfurter, New York: Coward-MbCann, Inc., 1969. Becker, Theodore L., Political Behavioralism and Medern Jurisprudence, Chicago: Rand McNalIy, l96h. Blalock, Hubert, Social Statistics, New York: McGraw-Hill, 1960. Cattell, Raymond 8., "Factor Analysis: An Introduction to Essentials," Biometrics, 21, pp. 190-215. Cohen, Arthur, Attitude Change and Social Influence, New York: Basic Rake , 1961‘ e Coleman, James 8., "Multidimensional Scale Analysis," American Journal of Sociology, 63, 1957, pp. 253-63. Coombs, Clyde, A Theory of Data, New York: John Wiley &,Sons, 196k. Countryman, Vern, ed., Do las of the Supreme Court: A Selection of His Opinions, Garden Cigy, New York: Doubleday,’1959. Cronbach, Lee J., The Essentials of Psychological Testing, second edition, New York: Harper 8: Row, 1935: Dahl, Robert A., "Decision making in a Democracy: The Supreme Court as a National Policy Maker," Journal of Public Law, h, 1957, pp. 279-95. Danelski, David J., "The Influence of the Chief Justice in the Decision- Making Process," in Halter F. Murphy and C. Herman Pritchett, Courts, Jud es and Politics: An Introduction to the Judicial Process, New York, Random House, 1961. Dator, James, "The Life History and.Attitudes of Japanese High Court Judges,"'western Political Quarterly, 20, June 1967, pp. hOB-39. 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Bethlehem National Bank New York, Chicago & St. Louis Railroad v. Frank Gray v. Powell United States v. Emory Board of Trade v. United States Glasser v. United States (Nos. 30-32) Southport Petroleum Co. v. NLRB Exhibit Supply Co. v. Ace Patents Corp. (Nos. 15h-156) Cloverleaf Butter Co. v. Patterson United States v. Pink Stewart v. Southern Railway Co. United States v. Bethlehem Steel Corp. (Nos. 8-9) Cudahy Packing Co. v. Holland ‘Williams v. Jacksonville Terminal Co. (Nos. 112 & 1023) Hysler v. Florida United States v. Carolina Freight Carriers Corp. Howard Hall Co. v. United States APPENDIX A 315 US 316 US 521 . 51:3 610 637 685 698 722 752 b 31 56 7h 107 1114 129 159 17h 203 216 258 286 310 332 3614 1:07 191 United States v. Local #807, I.B.T. Pearce v. Commissioner of Internal Revenue Puerto Rico v. Russell & Co. Puerto Rico v. Hermanos NLRB v. Electric Vacuum Cleaner Co. Miles v. Illinois Central Railroad Carpenters & Joiners Union v. Ritter's Cafe Jacob v. City of New York Scripps-Howard Radio v. FCC Southern Steamship Co. v. NLRB Helvering v. Safe Deposit a Trust Co. of Baltimore Gregg Cartage & Store Co. v. United States- Helvering v. Credit Alliance Corp. Goldstein v. United States Goldman v. United States (Nos. 962-963 a 980) Georgia v. Evans State Tax Commission of Utah v. Aldrich Mishawaka Rubber & Woolen Co. v. 8.8. Kresge Co. Swift & Co. v. United States United States v. Nunnally Investment Co. Seminole Nation v. United States Seminole Nation v. United States Pence v. United States Williams Manufacturing Co. v. United Shoe Machinery Corp. Columbia Broadcasting System v. United States APPENDIX A 316 US 317 US 318 US At? ASS A91 517 556 S72 58h 62h 88 135 15h zoo 2h9 269 287 383 h12 h2h uh? h56 501 537 552 9 192 National Broadcasting Company v. United States Betts v. Brady Brilhart v. Excess Insurance Co. of America Kirschbaum v. Walling Chrysler Corp. v. United States Overnight Motor Transportation Co. v. Missel Jones Opelika (Nos. 280, 31h & 966) Walling v. A.H. Belo Corp. Warren-Bradshaw Drilling Co. v. Hall State Bank of Hardinsburg v. Brown Helvering v. Stuart (Nos. h8-h9) United States v. Wayne Pump Co. Davis v. Department of Labor of Washington Adams v. United States Williams v. North Carolina Marshall v. Pleta Pendergast v. United States (Nos. 183, 186 a 187) United States v. Monia Harris v. Zion's Savings Bank a Trust Go. Public Utilities Comn. of Ohio v. United Fuel Gas Co. Endicott Johnson Corp. v. Perkins United States ex. rel. Marcus v. Hess United States ex. rel. Ostrager v. New Orleans Chapter NLRB v. Indiana & Michigan Electric Co. APPENDIX A 318 us So 80 125 133 176 181; 206 218 236 261 285 306 322 332 350 371 1431: hhz 523 S78 60h 629 6143 660 193 In re Bradley SEC v. Chenery Corp. Overstreet v. North Shore Corp. Hendry Co. v. Moore Smith v. Shaughnessy Robinette v. Helvering United States v. Oklahoma Gas & Electric Co. Federal Security Administrator v. Quaker Oats Co. Viereok v. United States Penn Dairies v. Milk Control Commission of Pennsylvania Pacific Coast Dairy v. California Dept. of Agriculture Helvering v. Sabine Transportation Co. Helvering v. American Dental Co. McNabb v. United States Anderson v. United States Helvering v. Griffiths Corn Exchange National Bank & Trust Co. v. Klauder United States v. Swift a Go. Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific Railroad (Nos. 11-19 a 32) Ex Parte Peru Helvering v. Sprouse (Nos. 22 & 66) Greek Nation v. United States (Nos. 321-322) Fred Fisher Music Co. v. Witmark & Sons De Zon v. American President Lines APPENDIX A 318 US 319 US 675 688 702 72A 1 33 61 103 105 1A1 157 190 239 266 315 3A8 350 359 372 A15 AA8 A7A ABA A91 503 19A Illinois Commerce Commission v. Thomson New York ex. rel. Whitman v. Wilson United States v. Lepowitch Aguilar v. Standard Oil Co. of New Jersey (Nos. ASA & 582) L.T. Barringer & Co. v. United States Bowles v. United States Jersey Central Power & Light Co. v. FPC Jones v. Opelika (Nos. 280, 31A & 966) Murdock v. Pennsylvania (Nos. A80-A87) Martin v. Struthers Douglas v. City of Jeannette National Broadcasting Co. v. United States (Nos. SSA-555) FCC v. National Broadcasting Co. United States ex. rel. Tennessee Valley Authority v. Powelson Burford v. Sun Oil Co. (Nos. h95-h96) Hastings v. Selby Oil & Gas Co. Bailey v. Central Vermont Railway Altvater v. Freeman Galloway v. United States Kelley v. Everglades Drainage District Freeman v. Bee Machine Co. Mahnomen County v. United States Bartchy v. United States McLeod v. Threlkeld United States v. Johnson APPENDIX A 319 US 320 US 521 523 533 561 590 598 62A 671 715 1 118 228 256 26A 277 297 323 338 3AA A10 A30 A76 520 195 United States v. Belt Virginian Hotel Corp. v. Helvering Virginia Electric & Power Co. v. NLRB Boone v. Lightner Interstate Transit Lines v. Commissioner of Internal Revenue Oklahoma Tax Commission v. United States (Nos. 623-625) ‘West Virginia State Board of Education v. Barnette ICC v. Inland Waterways Corp. Owens v. Pacific Railroad Co. Marconi Wireless Telegraph Co. of America v. United States (Nos. 369 & 373) Schneiderman v. United States Meredith v. City of Winter Haven Merchants National Bank of Boston v. Commissioner of Internal Revenue Roberts v. United States United States v. Dotterweich Switchmen's Union of North America v. National Mediation Board General Committee of the Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co. General Committee of the Brotherhood of Locomotive Engineers v. Southern Pacific Co. (Nos. 2? & Al) SEC v. Joiner Leasing Corp. Estate of Henry H. Rogers v. Helvering Magnolia Petroleum Co. v. Hunt Brady v. Southern Railway Co. Hill v. Hawes APPENDIX A 320 US 321 US 527 531 5A9 561 577 591 661 685 1 19 29 36 67 96 1AA 158 19A 22 s 231 253 275 281 I 288 321 332 196 United States v. Gaskin United States v. Hark Falbo v. United States United States v. Myers (Nos. 1A2-1A6) California v. United States (Nos. 20 & 22) FPC v. Hope Natural Gas Co. (Nos. 3A-35) Mercoid Corp. v. Mid-Continent Investment Co. City of Yonkers v. United States Snowden v. Hughes Thomson v. United States Tennant v. Peoria & Pekin Union Railway Co. Demorest v. City Bank & Farmers Trust Co. (Nos. 52 a 227) McLean Trucking Co. v. United States Magnich v. Southern Steamship Co. Davies Warehouse Co. v. Bowles Prince v. Massachusetts Eastern-Central Motor Carriers Assn. v. United States Simpson & Co. v. Commissioner of Internal Revenue Dobson v. Commissioner of Internal Revenue Flourney v. Wiener Goodyear Tire & Robber Co. v. Ray-O-Vac Co. Security Flour Mills Co. v. Commissioner of Internal Revenue Stark v. Wickard Hecht Co. v. Bowles J.I. Case Co. v. NLRB APPENDIX A 321 US 322 US 3A2 3A9 383 AIA A89 503 5A2 573 590 620 63A 6A9 678 730 A 31 A7 65 78 111 13? 1A3 17A 202 238 197 Order of Railroad Telegraphers v. Railway Express Co. Anderson v. Abbott Johnson v. Yellow Cab Transit Co. Yakus v. United States (Nos. 37A~375) Vinson v. Washington Gas Light Co. Bowles v. Willingham Billings v. Truesdell Follett v. Town of McCormick Tennessee Coal, Iron & Railroad Co. v. Muscoda Local #123 Sartor v. Arkansas Natural Gas Corp. Cornell Steamboat Co. v. United States Smith v. Allwright Medo Photo Supply Corp. v. NLRB United States v. Blair Pollock v. Williams United States v. Marshall Transport Co. Great Northern Life Insurance Co. v. Read United States v. Mitchell United States v. Ballard NLRB v. Hearst Publications (Nos. 336-339) Allen Calculators v. National Cash Register Go. Ashcraft v. Tennessee United States v. Allegheny County Union Brokerage Co, v. Jensen Hazel-Atlas Glass Co. v. Hartford-Empire Co. APPENDIX A 322 US 271 275 292 327 '335 323 US 3A0 369 385 398 A08 A35 A87 503 526 533 596 607 665 680 AA 57 88 101 106 173 198 Shawkee Manufacturing Co. v. Hartford-Empire Co. Douglas v. Commissioner of Internal Revenue (Nos. 130-133) Northwest Airlines v. Minnesota MeLeod v. J.B. Dilworth Co. General Trading Co. v. Iowa State Tax Commission International Harvester Co. v. Indiana Dept. of Treasury Mortensen v. United States United States v. Saylor (Nos. 716-717) L.P. Steuart & Brothers v. Bowles Crites, Inc. v. Prudential Insurance Co. of America International Harvester Co. v. Wisconsin Dept. of Taxation Feldman v. United States ICC v. City of Jersey City Wisconsin Gas & Electric Co. v. United States United States v. South-Eastern Underwriters Assn. Lyons v. State of Oklahoma Addison.v. Holly Hill Fruit Products Baumgartner v. United States Hartzel v. United States Commissioner of Internal Revenue v. Harmon McDonald v. Commissioner of Internal Revenue Kann v. United States Specter Motor Service v. McLaughlin United States v. Standard Rice Co. United States v. Crescent Amusement Co. (Nos. 17-19) APPENDIX A 323 US 32A US 21A 2A8 273 338 353 360 365 373 386 A71 A85 A90 516 557 57A 600 612 62A A9 83 117 138 15A 199 Korematsu v. United States Wallace Corp. v. NLRB (Nos. 66-67) United States v. Johnson Singer v. United States United States v. Waddill, Holland & Flinn United States v. Rosenwasser McKenzie v. Irving Trust 00. United States v. General wtors Corp. Hartford-Empire Co. v. United States (Nos. 2-11) Williams v. Kaiser Tomkins v. Missouri Western Union Telegraph Co. v. Lenroot Thomas v. Collins United States v. Townsley Tiller v. Atlantic Coast Line Railroad Co. Blair v. Baltimore & Ohio Railroad Co. United States v. Pennsylvanis Railroad Co. (Nos. A7-A8) Otis & Co. v. SEC Regal Knitwear Co. v. NLRB House v. Mayo Muschany v. United States (Nos. 31-32) Barr v. United States Herb v. Pitcairn (Nos. 2A-25) Central States Electric Co. v. City of Muscatine, Iowa State Farm Mutual Automobile Insurance Co. v. Duel APPENDIX A 32A US 16A 177 182 193 20A 2AA 282 303 308 316 335 370 386 A01 A39 A90 A99 515 5A2 570 581 652 695 697 786 200 Webre Steib Co. v. Commissioner of Internal Revenue Commissioner of Internal Revenue v. Smith Charleston Federal Savings &.Loan Assn. v. Alderson United States v. Beach Young v. Higbee Gemsco, Inc. v. Walling (Nos. 368-370) Robinson v. United States Commissioner of Internal Revenue v. Wemyss Merrill v. Fahs Drummond v. United States Northwestern Banks of Shoshone Indians v. United States Special Equipment Co. v. Coe United States v. Commodore Park Malinski v. New York Georgia v. Pennsylvania Railroad Co. Phillips v. walling United States v. Willow River Power Co. Connecticut Light & Power Co. v. FPC Commissioner of Internal Revenue v. Wheeler Hartford-Empire Co. v. United States (Nos. 2-7) Colorado Interstate Gas Co. v. FPC Hooven.& Allison Co. v. Evatt Commissioner of Internal Revenue v. Smith Brooklyn Savings Bank v. O'Neil (Nos. AA5, 55A & A21) Rice v. Olson APPENDIX A 32A Us 325 US 793 806 1 91 161 196 212 226 293 335 357 385 398 A10 A27 A78 507 535 538 561 578 589 673 679 201 Republic Aviation Corp. v. NLRB (Nos. 226 & A52) Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co. Cramer v. United States Screws v. United States Jewell Ridge Coal Corp. v. United Mine Workers Local #6167 United States Alkali Export Assn. v. United States (Nos. 1016-17) DeBeers Consolidated Mines v. United States (Nos. 1189-1190) Williams v. North Carolina Angelus Milling Co. v. Commissioner of Internal Revenue International Union of Mine, Mill and Smelter W0rkers, Local #1 v. Eagle-Pitcher Mining and Smelting Co. United States v. Capital Transit Co. American Power & Light Co. v. SEC (Nos. A70 & 815) Akins v. Texas Bowles v. Seminole Rock and Sand Co. Walling v. Harnischfeger Corp. Keegan v. United States (Nos. 39 & AA) North Carolina v. United States (Nos. 560-561) Alabama v. United States (Nos. 57A & 592) Hill v. Florida In re Summers 10 East AOth Street Building v. Callus Nebraska v. Wyoming Lincoln National Life Insurance Co. v. Read Borden Co. v. Borella APPENDIX A 325 US 326 US 687 697 711 761 797 821 1 60 99 120 135 179 20? 2A9 265 295 310 327 A25 A65 A80 A90 501 517 521 202 Goldstone v. United States Inland Empire District Council v. Millie Elgin, Joliet & Eastern Railway Co. v. Burley Southern Pacific Co. v. Arizona Allen Bradley Co. v. Local #3 Hunt v. Crumboch Associated Press v. United States (Nos. 57-59) ICC v. Parker (Nos. 507-508) Guaranty Trust Co. of New Yerk v. York Radio Station WOW, Inc. v. Johnson Bridges v. Wixon Barrett Line, Inc. v. United States Asbury Hospital v. Cass County Scott Paper Co. v. Marcalus Manufacturing Co. Glass City Bank v. United States Gangs Lumber Co. v. Rowley International Shoe Co. v. Washington Ashbacker Radio Corp. v. FCC Hercules Gasoline Co. v. Commissioner of Internal Revenue Commissioner of Internal Revenue v. Flowers Commissioner of Internal Revenue v. Estate of Harry Holmes Markham v. Allen Marsh v. Alabama Tucker v. Texas John Kelley Co. v. Commissioner of Internal Revenue (N08. 36 86 h?) APPENDIX A 326 US 536 327 US 561 572 599 607 638 l 82 92 103 11A 178 186 220 251 27A 280 293 30A 399 A16 A37 A63 MA 515 203 Mason v. Paradise Irrigation District Order of Railway Conductors v. Pitney New York v. United States Kirby Petroleum Co. v. Commissioner of Internal Revenue Bollenbach v. United States United States v. New York Telephone Co. In re Yamashita Canizio v. New York Case v. Bowles Hulbert v. Twin Falls Co. Estep v. United States (Nos. 292 & 66) Mabee v. White Plains Publishing Co. Oklahoma Press Publishing Co. v. Walling (Nos. 61 a 63) Griffin v. Griffin Bigelow v. RKO Radio Pictures Ashcroft v. Tennessee Commissioner of Internal Revenue v. Tower Lusthaus v. Commissioner of Internal Revenue Duncan v. Kahanamoku Poff v. Pennsylvania Railroad Co. Nippert v. Richmond United States v. American Union Transport Boutell v. Walling Wilson v. Cook United States v. Pierce Auto Freight Lines APPENDIX A 327 US 573 328 US 582 61A 633 6A5 655 661 678 726 7A2 12 25 50 61 85 108 152 217 23A 256 275 293 373 395 20A Kennecott Copper Corp. v. State Tax Commission (NOSe 1821‘ & 1125) American Federation of Labor v. Watson M. Kraus & Brothers v. United States United States v. Carbone Lavender v. Kurn McAllister Lighterage Line v. United States Elgin, Joliet 6 Eastern Railway Co. v. Burley Bell v. Hood Heiser v. Woodruff United States v. Rice El Dorado Oil Works v. United States Burton-Sutton Oil Co. v. Commissioner of Internal Revenue Thomas Paper Stock Co. v. Porter Girouard V. United States Seas Shipping Co. v. Sieracki Schulte v. Gangi First Iowa Hydro-Electric Cooperative v. FPC Thiel v. Southern Pacific Co. United States v. Joseph A. Holpuch Co. (Nos. 696-697) United States v. Causby Fishgold v. Sullivan Drydock & Repair Corp. SEC v.'W.J. Howey Co. Morgan v. Virginia Porter v. Warner Holding Co. APPENDIX A 328 US AAO A63 A95 5A9 582 62A 633 6A0 65A 680 . 707 750 205 Robertson v. California Fisher v. United States Reconstruction Finance Corp. v. Denver & Rio Grande Western Railroad Co. (Nos. 278-281) Colegrove v. Green Davis v. United States Zap v. United States Bihn v. United States Pinkerton v. United States Knauer v. United States Anderson v. Mt. Clemens Pottery Co. Hust v. Moore-McCormack Lines Kotteakos v. United States (Nos. A57-A58) 206 APPENDIX B - ATTITUDE OBJECTS (A0) AND ATTITUDE SITUATIONS ADMINISTRATIVE DEFERENCE A0 - Federal regulatory commissions AS - Autonomy of administrative agency regulation A81 - Judicial supervision of agency decision-making ANTITRUST AO - Businesses/groups restraining free competition AS - Federal antitrust regulation APPEAL - STATE T0 FEDERAL COURTS A0 - Civil or criminal litigants AS -Federa1 court supervision of state court decision-making A81 - Effect of state statute and/or state court decisions on reviewing federal courts APPEAL - SUBSTANTIVE JUDGMENT REVIEW A0 - Civil or criminal litigants AS - Autonomy of state court decision-making BANKRUPTCY A0 - Bankrupts AS - Federal regulation of bankruptcy ASl - Federal Bankruptcy Act CLAIMS (FISCAL) AGAINST FEDERAL GOVERNMENT AO - Person/businesses paying federal taxes AS - Claims against the federal government for full or partial refund of particular previously paid taxes on other than Constitutional grounds COERCED CONFESSION AO - Criminal defendant AS - Coercive treatment by state or federal law enforcement agents COLLABORATION A0 - Criminal defendants AS - Collaboration in conspiracy to commit various criminal acts A81 - Construction of requisites for criminal conviction for con- spiring to commit specific criminal act COMMISSION REGULATION - RATE SETTING AO - Businesses affected with the public interest AS - Regulation by federal commissions regarding rates and/or standards of competition A81 - Judicial deference to commission rate policies 207 APPENDIX B CONTRACTS AO - Persons/businesses entering into contractual agreements AS - Failure to comply with contract obligations COUNSEL AO - Criminal defendant AS - Right to legal representation ASl - Incorporation through the lAth Amendment CRIMINAL LIABILITY AO - Criminal defendants AS - Determination of criminal reaponsibility for particular acts DELEGATION OF LEGISLATION POWER AO - Persons or Businesses AS - Procedural due process A81 - Delegation of legislative powers to specific administrative agencies or commissions A82 - Limits on delegated powers DOUBLE JEOPARDY A0 - Criminal defendant AS - Double jeopardy DUE PROCESS A0 - Legally sanctioned persons AS - Due process EMINENT DOMAIN AO - Property owners AS - State condemnation of property for public use EMERGENCY PRICE CONTROL ACT AO - Criminal defendant AS - Activity detrimental to the national interest during a declared national emergency ASl - Emergency Price Control Act EQUAL PROTECTION A0 - Persons discriminated against AS - Failure to receive equal protection of laws EVIDENCE - SUFFICIENCY A0 - Criminal or civil litigants AS - Adequacy of evidence used in securing judgment or conviction FAIR LABOR STANDARDS ACT - CONTRACTS A0 - wage earners AS -.Applicability of wage-hour provisions to employees governed by negotiated contract or paid on other than an hourly basis 208 APPENDIX B FAIR LABOR STANDARDS ACT - COVERAGE A0 - Wage earners AS - Occupations within the provisions of the Fair Labor Standards Act FEDERAL EMPLOYERS LIABILITY ACT A0 - Injured employee AS - Compensation obligations of employer under provisions of Federal Employers Liability Act FEDERAL-STATE RELATIONS - COMMERCE A0 - Businesses AS - State regulation of foreign (out-of-state) businesses FEDERAL-STATE RELATIONS - OVERLAPPING POLICY CONFLICTS AO - Businesses AS - State regulation of businesses in areas also proscribed by federal statutory regulation FEDERAL-STATE RELATIONS - NATIONAL SUPREMACY AO - Businesses AS - State and federal regulation of business representing sub- stantively incompatible policies FEDERAL-STATE RELATIONS - TAXATION CONFLICTS A0 - Businesses AS - State taxation of businesses conflicting with federal taxation provisions FEDERAL TAXATION - PROVISION CONSTRUCTION A0 - Persons subject to federal taxation AS - Construction of tax statutes defining federal tax liability FEDERAL TAXATION - EXEMPTIONS A0 - Persons or businesses subject to federal income taxation AS - Exemption claims on personal and corporate income FEDERAL TAXATION - LIABILITY AO - Persons financially sanctioned by the federal government AS - Fiscal claims of the federal government FEDERAL TAXATION - SUCCESSION & ESTATE TAXES A0 - Persons financially sanctioned by the federal government AS - Taxation of estates and inheritances FISCAL LIABILITY A0 - Persons or businesses AS - Financial responsibility for property damages and/or damages for failure to fulfill general obligations 209 APPENDIX B FULL FAITH & CREDIT A0 - Persons or businesses AS - Recognition of legal judgments rendered in Jurisdiction of another state INDIAN PROPERTY A0 - Indians AS - Claims upon Indian preperties and assets INDIAN TREATIES A0 - Indians AS - Substantive review of violations of Indian treaties A31 - Indian claims for appropriate retribution INTERSTATE COMMERCE COMMISSION - PUBLIC NECESSITY & CONVENIENCE A0 - Common carriers AS - Applications to the Interstate Commerce Commission for certi- fication of public necessity and convenience A51 - Autonomy of Interstate Commerce Commission Judgments JUDICIAL INTERVENTION (COMITY) A0 - State regulation AS - Exercise of federal court jurisdiction prior to completion of state court procedings JUDICIAL REVIEW OF REGULATORY COMMISSIONS A0 - Federal regulatory commissions AS - Review of powers and the exercise thereof of federal regulatory commissions by the federal Judiciary A81 - Judicial supervision of agency decision-making JURY TRIAL A0 - Criminal defendant or civil litigant AS - Right to Jury Judgment MILITARY-CIVIL A0 - Criminal defendant AS - Military court procedings A81 - Civil court review of military court procedings NATURALIZATION-DENATURALIZATION A0 - Aliens, foreigners, or immigrants AS - Conduct prohibiting acquisition of national citizenship or the loss of naturalized citizenship 210 APPENDIX B NATIONAL LABOR RELATIONS ACT A0 - Wage earners AS -uRights of labor unions and labor union members under federal legislation A81 - National Labor Relations Act PATENTSr&.COPYRIGHTS A0 - Persons or businesses AS - Right to fiscal and all other benefits deriving from one's creative efforts PERSONAL INJURY LIABILITY A0 - Injured person AS - Responsibility for injury to individual - fiscal RADIO REGULATION A0 - Radio station licensees and national radio networks AS - Regulation or attempts to regulate the operation of radio networks and/or local licensees by the federal government A51 - Freedom of the press A52 - Freedom of speech RAILWAY LABOR ACT A0 - Railroad workers and railroad workers' unions AS - Certification of bargaining agents and collective bargaining agreements entered into under provisions of the Railway Labor Act RELIGION A0 - Persons attempting to exercise freedom of religion AS - Restriction(s) of religious freedoms and the exercise thereof SEARCH & SEIZURE A0 - Criminal defendants AS - Standards of Operation for law enforcement agents in the securing of evidence SELECTIVE SERVICE A0 - Persons subJect to conscription AS - Refusal and/or failure to conform to requirements of Selective Training and Service Act FREEDOM OF SPEECH & PRESS A0 - Freedom of speech and press AS - Deprivation or inhibition of the right to freedom of speech and/or press 211 APPEHDIX B STATE COMMISSION REGULATION A0 - Businesses AS - Regulation of businesses by state regulatory commissions or similarly authorized agencies of state government STATE TAXATION - COI’IMERCE A0 - Businesses AS - State taxation of business and articles in interstate commerce STATUTORY CONSTRUCTION - CRIMINAL A0 - Criminal defendant AS - Criminal acts which have been proscribed by legislation STATUTORY CONSTRUCTION - REMEDIES A0 - Persons or businesses AS - Acts and/or circumstances covered by legislation SUPREME COURT JURISDICTION A0 - Persons or businesses AS - Authority for judicial action by U.S. Supreme Court TRIAL - PREJUDICIAL ERRORS A0 - Criminal defendant . AS - Prejudicial remarks, atmosphere or Jury instruction during conduct of judicial proceeding UNIONS - BARGAINING AGENTS A0 - Labor unions ‘ AS - Certification and/or recognition of bargaining representative or a given labor union UNIONS - CLOSED SHOP A0 - Labor unions AS - Compulsory union membership UNIONS - SOLICITATION A0 - Labor unions AS - Inhibition of union membership recruitment A81 - Freedom of speech UTILITY REGULATION A0 - Public utilities AS - Federal regulation of public utilities WAR POWERS A0 - Agencies of the federal government AS - Emergency operational authority of governmental agencies during the national wartime emergency 212 APPENDIX C - GUTTMAN SCALOGRAMS The following pages contain the Guttman scales of the sixty variables. The various notations found among these pages are briefly detailed below. A. B. C. D. Each case is listed by U.S. Re orts citation. Thus, the first case in the Administrative De erence is Republic Aviation Corp. v. NLRB. Its U.S. Reports citation is 32h US 793. The scale short- hands this citation as 2h/793. A number which appear following a colon or found in parentheses is the case (docket) number. This number(s) appears where more than a single case is decided in a particular opinion. Using, again, the Republic Aviation case, the docket number of the case is 226. In addition to responding to the appeal of Republic Aviation, the Court also decided NLRB v. Le Tourneau Company of Georgia because of fact-situation similarities. The La Tourneau docket number is hSZ though both have the same U.S. Re orts citation, 32h US 793. Each citation followed by the tItIe 0% a category-set such as the NLRB notation following the Republic Aviation and Le Tourneau cases means that this case is a duplicate; that it is also located in another set. In the example above, these cases also appear in the NLRB scale. 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Wu mwbbbmym..vm§a mNIhn mIH I I I I I I I I + unsupfiacd I ~n~\m~ film I I I I I I + + + NNN\MH aIm I I I I + + + + + ©Hm\mm MI@ I I I + + + + + + m\dm «IO 2 I I + + + + + + OOH\mH 7w I + + + + + + + + 932 I «3333.3 film I + + + + + + + + mun: I owmumm~\am IddflOH Hfim Dom 00m oom hhfl Xhh 0‘5 flfim mHm 50D ha: nondo ZOHH¢HNNNNHHNHF‘ Q .167 x Dougl .769 .895 .000 1.000 1.000 .9hh .962 .800 .71h 1.000 1.000 1.000 1.000 .778 1.000 1.000 .900 1.000 1.000 .818 1.000 1.000 .933 1.000 .667 1.000 .667 .585 .889 .269 .150 1.000 .875 .667 .800 1.000 1.000 1.000 .857 1.000 .182 .222 .667 1.000 Frank .68h .750 .600 .278 .767 .100 .1h3 .250 .h29 .273 .h29 .667 .300 .000 .200 .000 .800 .909 .500 .333 .600 .h62 .500 .000 .889 .855 .333 .000 .750 .125 .000 .111 .000 .571 .077 .923 .71h .150 .818 .667 .111 .36h Jacks .069 .632 .375 .000 .000 .667 .633 .hoo .h29 .125 .h29 .1h3 .778 .125 .375 .300 .183 .667 .636 1.000 .600 .692 .893 .636 .778 .308 .600 .hOO .9hh .600 .683 .333 .500 .571 .059 .818 .111 .hhh .300 279 APPENDIX F Black Burto Byrne Dougl State Tax (Comn) 1.000 x x .875 Sup Court Juris .900 x .900 .900 Trial - Errors 1.000 .769 x .923 Unions - Agents 1.000 x x 1.000 Unions - Closed Shop 1.000 .200 x 1.000 Unions " 8011311; e857 1 em e857 Utility Reg 1.000 x x 1.000 War Powers .591 x x .5h5 Stat Con (Rem) .833 x .833 .917 Appeals - Review 1.000 x x 1.000 Collaboration 1.000 x x 1.000 Appeals - St to Fed 1.000 x x .818 Stat Con (Crim) .600 x x .600 Admin Deference 1.000 x x .938 Supremacy' .8h6 x x 1.000 Legis Power Deleg .833 x .917 .833 MEAN SCALE SCORES Black .8600 for 60 sets Burton .3589 for 1h sets Byrnes .6hh5 for 1b sets Douglas .8388 for 60 sets Frankfurter .3679 for 60 sets Jackson .h757 for 60 sets Frank .500 .000 .862 .571 .200 .571 .167 .000 .667 .862 .000 .273 .300 .312 .000 .500 Jacks .125 .750 .769 .h29 .200 .71h .583 .227 .333 .231 .800 .909 .600 .688 .700 .833 APPENDIX F Antitrust Bankruptcy Claims on Gov't Coerced Confession ICC-PN&C Comn Reg - Rates Jud Rev - Comns Contracts Counsel Double Jeopardy Eminent Domain Emer Price Act Equal Protection Evidence - Suff Fed-St (Comn) Fed-St (Policy) Fed-St (Tax) Fed Tax-Construction Fed Tax-Exemptions Fed Tax-Liability Fed Tax-Succession FELA FLSA-Contracts FLSA-Coverage Full Faith & Credit Indian Property Indian Treaties Comity Due Process Jury‘Trial Crim Liability Fiscal Liability Injury'Liability Military-Civil Nat-Denat NLRA Patents &.Copy Radio Regulation Railway Labor Act Religion Search & Seizure Selective Service Speech-Press Stats Conn Reg Murph 1.000 .789 .500 .600 .375 .9hh 1.000 .800 1.000 .500 1.000 .818 .786 .667 .800 .933 .hOO .500 .333 .636 .833 1.000 1.000 .923 .333 .h29 1.000 .909 .667 .923 1.000 1.000 .875 1.000 1.000 1.000 .769 .308 .857 1.000 1.000 1.000 1.000 .727 280 Reed .385 .68h .250 .200 .375 .222 .933 .800 .571 .750 .571 .36h .500 .hhh .hoo .838 .hoo .125 .867 .h09 .833 .533 .800 .769 .333 .21h .778 .727 .167 .385 .050 .375 .375 .667 .boo .85? .15h .816 .1h3 .000 .000 .222 .hhh .h55 Rober .308 .000 .125 .000 .250 .059 .000 .000 .000 .h38 .000 .000 .000 .667 .700 .286 .050 .375 .733 .000 .000 .000 .000 .000 .167 .6h3 .556 .273 .063 .231 .800 .350 .063 .000 .100 .000 .000 .000 .000 .150 .273 .hhh .000 .000 Rutle .692 .737 .875 .hOO .875 .833 .750 .650 .857 .375 .7lh .ASS .7lh .889 .100 .929 .700 .250 .1h3 .727 I .867 .933 1.000 .833 .968 .222 1.000 .667 .8h6 .975 .625 .778 1.000 .96h .ShS .8h6 1.000 1.000 .818 .889 251.5 Stone .158 .632 .250 .200 .250 .333 .700 .571 .375 .286 .5h5 .571 .222 .200 .625 .375 .600 .368 .500 ~133 .067 .769 .333 .000 .333 .059 .077 .300 .359 .250 .hhh .000 .683 .231 .500 .71h .850 .636 .000 .111 .36h APPENDIX F State Tax (Comn) Sup Court Juris Trial - Errors Unions -.Agents Unions - Closed Shop Unions - Solicit Utility Reg ‘War Powers Stat Con (Rel) Appeals - Review Collaboration Appeals - St to Fed Stat Con (Cris) Admin Deference Supremacy Legis Power Deleg Murph .875 1.000 .538 1.000 .800 1.000 1.000 1.000 1.000 ..769 .700 .727 .900 .875 .769 .833 MEAN SCALE SCORES Murphy Reed Roberts Rutledge Stone 281 Rober .000 .150 .308 .000 .600 .000 .0h2 .515 .000 .000 .500 .050 .000 .077 .000 Rutle .750 .100 .615 o 8’46 1.000 .786 .750 .909 .833 .885 .600 .773 .700 .65h .769 1.000 .8222 for 60 sets .h69h for 60 sets .1692 for 60 sets .7286 for 59 sets .3536 for 60 sets 282 APPENDIX C Tau Correlation Matrix Factor Loadings - 2 Factor Solution/ Varimax Rotation Analysis I II a? Antitrust e 576 e 519 e603 Bankruptcy“ .7hl .h87 .785 Claims on Government .020 .b63 .2lh Coerced Confession .639 .295 .h95 ICC: PH &.0 Applications .72h .273 .599 Commission Regulation: Rates .531 .6h8 .701 Judicial Review: Commissions .707 .339 .61h Contracts .726 .h95 .772 Right to Counsel .h60 .696 .696 Double Jeopardy .768 -.137 .608 Eminent Domain .60h .679 .825 Emergency Price Control Act .688 .306 .567 Equal Protection .753 .372 .70h Evidence : Sufficiency .221: .392 .203 Federal-State: Commerce .568 -. .326 Federal-State: Policy .578 .suu .629 Federal-State: Taxation .693 .306 .57h Federal Tax: Definition -.601 -.152 .388 Federal Tax: Exemptions .h50 -.362 .333 Federal Tax: Liability“ .h31 .377 .327 Federal Tax: Succession .571 .309 .821 Fed Employers' Liability Act .6h9 .6hl .832 Fair Labor Stan Act: Contracts .705 .62h .886 Fair Labor Stan Act: Coverage .636 .510 .66h Full Faith and Credit .616 .803 .Shl Indian Property .528 .300 .369 Indian Treaties .107 .1h3 .031 Comity e 161 e673 eh79 Duo Pmc.88 e601 eBhO ell]? Jury Trms e625 e528 e669 Criminal Liability -.563 .53h .602 Fiscal Liability' .665 .525 .717 Military-Civilian .1h9 .701 .513 Natural-Denaturalisation .330 .762 .688 Nat'l Labor Relations Act .770 .561 .908 Patents and Copyrights .689 .h57 .683 Radio Regulation .h06 -.081 .171 Railway Labor Act .158 .605 .391 Religion .358 .528 .h05 Search & Seizure -.h80 .570 .555 Selective Service -.1h3 .573 .3h8 Speech and Press .601 .50h .615 State Commission Regulation .820 .h08 .838 State Tax: Commerce .775 .h65 .817 APPENDIX 0 Supreme Court Jurisdiction Trials: Prejudicial Errors Unions: Bargaining Agents Unions: Closed Shop Unions : Solicitation Utility Regulation War Powers Stat Construction: Remedies Appeals: Substantive Review Collaboration Appeals: State to Federal Stat Construction: Criminal Administrative Deference Federal-State: Supremacy Legislative Power Delegation Proportions of Variance 283 .510 .758 .717 .898 .838 .588 .315 .861 .650 .505 .207 .720 .692 .196 33.2% II .292 -.187 .380 .813 .788 .668 .559 .715 .355 .078 .372 .853 .538 .535 .860 28.8% 58.0% Antit: Claim: Coerc: ICC:I Comn) Judie Contr 288 APPENDIX C Tau Correlation Matrix Factor Loadings - 3 Factor Solution/Varimax Rotation Analysis I II III h2 Antitrust .728 .083 -.371 .673 Bankruptcy .680 “e 170 " e 590 e 78? Claims on Government -.085 .207 -.881 .276 Coerced Confession .628 -.158 -.316 .512 ICC: PN a C .786 -.181 -.257 .655 Conn Regulation: Rates .525 .060 -.652 .708 Judicm ”71.": COInB e675 "el78 -e376 e628 Contracts .719 -.098 -.505 .782 Right to Counsel .657 .289 -.897 .739 Double Jeopardy .698 -.853 .052 .689 Eminent Domain .587 .350 -.695 .828 Emer Price Control Act .623 -.207 -.376 .572 Equal Protection .817 -.120 -.313 .779 Evidence: Sufficiency .015 -.057 -.589 .361 Fed-State: Commerce .667 -.207 .160 .528 Fed-State: Policy .786 .138 -.336 .789 Fed-State: Taxation .583 -.239 -.820 .578 Federal Tax: Definition -.835 .081 -.075 .705 Federal Tax: Exemptions .100 -.599 .003 .368 Federal Tax: Liability e2h8 -0138 “e560 e39h Federal Tax: Succession .189 -.366 -.698 .650 Fed Emp Liability Act .585 -.060 -.785 .855 FLSA: Contracts e623 -.079 'e707 e893 FLSA: Coverage .678 -.022 -.878 .678 Indian Property' .303 -.285 -.528 .830 Indian Treaties .878 .262 .223 .382 Gantry e165 e2h2 'e662 e525 D“. ”06.8. .282 "e321 'e662 e621 Jury Trial .563 -.078 -.591 .672 Criminal Liability’ -.086 .818 -.085 .671 Fiscal Liability’ .739 -.008 -.853 .750 Injury Liability' .682 -.168 —.571 .765 Military-Civil .120 .209 -.722 .593 Nat-Denaturalisation .887 .283 -.680 .688 Nat'l Labor Relations Act .716 -.118 -.618 .908 Patents &.Copyrights .511 -.212 -.637 .712 Radio Regulation .080 -.838 -.289 .256 Railway Labor Act .808 ..373 -.358 .827 Religion .651 .279 -.233 ' .555 Search &.Seizure -.068 .752 -.l82 .590 Selective Service .190 .550 -.231 .391 Speech and Press .865 -.123 -.680 .681 State Comn Regulation .788 -.198 -.889 .856 State Tax: Commerce .783 -.151 -.502 .826 APPENDIX 0 Supreme Court Juris Trial: PreJ Errors Unions: Coll Bargain Unions: Closed Sh0p Unions: Solicitation Utility’Regulation War Powers Stat Con: Remedies Appeal: Sub Review Collaboration Appeal: State to Fed Stat Con: Criminal Admin Deference Fed-State: Supremacy Legis Power Delegation Proportions of Variance .872 .370 .601 .538 .850 .873 .732 .530 .726 .308 .108 .278 .523 .605 .257 29.8% 285 II -.117 -.657 -0219 .000 .168 -e026 .395 .172 -e256 'ehBl 'e318 .387 -e203 -e112 .351 8.5% III -e332 -0287 -e500 -e371 -e728 -0778 -.1h1 “0683 'Ohh9 'eh29 -e772 -.777 “0733 -062h -e791 26.3% .387 .629 .659 .825 .759 .822 .710 .723 .793 .508 .707 .799 .850 .768 .818 68.2% APPENDIX G Tau Antitrust Bankruptcy Claims Coerced Confess ICC: PN&C Comn Reg: Rates Jud Review: Comns Contracts Counsel Double Jeopardy Eminent Domain EPCA Equal Protection Evid: Sufficiency Fed-State: Comm Fed-State: Policy Fed-State: Tax Fed Tax: Definition Fed Tax: Exemptions Fed Tax: Liability Fed Tax: Succession FELA FLSA: Contracts FLSA: Coverage Full Faith Indian Preperty Indian Treaties Comity Due Process Jury'Trial Crim Liability Fisc Liability Military-Civil Injury Liability 286 Correlation Matrix Factor Loadings - 5 Factor Solution/Varimax Rotation Analysis I .889 .812 'e002 .839 .560 .653 .363 .805 .667 .852 .800 .871 .761 ’e026 .179 .791 .583 -e6h6 '0175 .169 .820 .805 .886 .713 .858 .298 .082 .093 .857 .381 -e170 .853 .366 .599 Nat -Denaturalisation . 368 NLRA Patents Radio Regulation RLA Religion Search & Seizure Sel Service Speech & Press State Comn Reg State Tax: Commerce .676 .752 -e081 .866 .518 -eOIh -0175 .892 .587 .539 II -.086 -0077 .363 ”e019 ’e222 .183 -.1h3 'e030 .211 'eh98 .018 -e127 -e023 -eOhh “e313 .075 -0183 .128 -.685 .085 -.357 'e089 -.063 .006 .029 'e290 .233 .157 ’e192 -0193 .773 .005 .198 -.197 .132 .e116 -e130 -.328 .889 .281 .827 .877 -.l72 --135 -e092 III .887 .301 -e171 .375 .818 '0017 .882 .123 .218 .876 .273 -e036 .307 -.093 .732 .307 .135 -.553 .211 -.008 -.280 .202 .259 .162 .355 .118 .597 .081 -0212 .296 .110 .185 -0252 .195 .200 .212 -0135 .039 .067 .378 -eOhl .398 .055 .376 .357 IV .009 -e731 -0529 “9738 -e227 'ebls -.553 -.358 -.119 -.152 ‘ehbs -.195 -.850 -.371 -.l39 -e01h -0379 -eOSh 'e222 -.790 -0227 -.835 -.556 -.278 -.560 -.208 “e119 “e150 --530 ‘0198 .128 “0155 “e178 “e275 .001 “e371 -0337 -.581 -.320 “0198 'e083 -.178 'e207 -.578 -.588 V .602 .376 .198 .067 .272 .801 .298 .288 .888 -.005 .652 .128 .085 .520 .051 .358 .283 -.083 .070 .208 .539 .706 .600 ~33? .188 .513 -e101 .789 .328 .711 .176 .333 .688 .527 .819 .511 .363 .087 .138 .210 .053 .806 .618 .281 .382 h2 .886 .983 .879 .812 .663 .781 .781 .872 .788 .702 .876 .830 .883 .820 .687 .853 .595 .783 .588 .698 .722 .900 .939 .728 .683 .878 .620 .679 .812 .685 .789 .708 .789 .861 .913 .886 .853 .576 .568 .696 .613 .698 .911 .888 APPENDIX G Sup Court Juris Trial: Errors Un: Coll Barg Un: Closed Shop Un: Solicitation Utility’Reg War Powers Stat Con: Rem App: Sub Review Collaboration App: State to Fed Stat Con: Crim Admin Defer Fed-St: Supremacy Legis Power Deleg Pr0porti0ns of Variance .682 .899 .332 .113 .876 .805 .589 .379 .589 .260 .327 .280 .619 .671 .358 28.1% II -.17S -0600 "e208 ' .212 -0051 02110 .205 -0173 -.588 -0195 .265 -.137 .369 8.1% 287 8.2% IV .090 -e2h8 -.582 -.218 "eh29 ’039h .220 -.503 "e569 "e08h 'e526 -:852 -.233 ’0273 18.1% V .327 .089 .892 .599 .561 .718 .377 .532 .237 .512 .880 .835 .508 .538 .691 19.8% .558 .678 .755 .723 .771 .889 .833 .775 .888 .686 .737 .865 .868 .820 .817 73.9% 288 APPENDIX C Tau Correlation Matrix Factor Loadings - 6 Factor Solution/Varimax Rotation Analysis I II III IV v VI h2 AntitrUSt ehh3 “e071 e550 0025 e505 -e301 e850 Bankruptcy .378 -.O66 .821 -.715 .288 -.228 .983 Claims .083 .378 .020 -.539 .161 .256 .528 Coer Conf .185 -.018 .806 -.721 .036 -.325 .813 ICC: PN&C e133 -e222 e728 -e230 e356 -0102 e786 Comn Reg: Rate! e673 elhh .880 “e381 -e010 ‘0030 e813 Jud Rev: Comns .808 -.139 .321 -.520 .118 -.898 .816 contraCtS eh82 -e0h3 e729 “e33h .050 e102 0880 Counsel .566 e210 0592 ‘0092 e215 'e115 e78h Doub Jeop e117 “0507 0500 'elBh e006 -0h13 e709 Eminent Domain e675 e038 e283 'eh32 e332 -.309 e929 EPCA .598 -.158 .628 -.158 -.277 -.017 .872 Equal Prat e3h0 -.O80 e731 -eh23 -0081 -.217 e88h Evid: Suff .118 -.016 .092 -.801 .588 ..351 .652 Fad'St: Comm -.028 -0306 03h? ‘e123 e191 -e659 e700 Fed-St: Policy .506 .065 .738 .018 .128 -.178 .853 Fed-St: Tax. .212 -.188 .652 -.383 .222 .125 .716 Fed Tax: Def 'e126 e139 ’e752 ’0073 “e067 e369 e7h6 Fad Tax: Exam e030 'e629 “e176 -e217 eIOh -e312 .588 Fed Tax: Liab .217 .058 .189 -.786 .108 .030 .701 Fed Tax: Succ .767 -.352 .097 -.201 .069 .138 .786 FELA 0679 -e069 e29h -.810 e801 “e192 e917 FLSA: Contract .638 -.O87 .383 -.526 .305 -.267 .968 FLSA: Coverage .813 -.001 .697 -.261 .171 .025 .758 Full Faith .068 .031 .638 -.568 .273 -.078 .808 Indian Prop e282 'e27s e3h9 “e219 .885 e225 e610 Indian Treat -e027 e233 e168 -e090 -e06h ‘0668 eShl Comity' .853 .188 .088 -.161 .600 .083 .681 Due Process .533 -.193 .255 -.518 .003 .176 .681 Jury Trial .527 -.169 .383 -.183 .555 -.151 .817 Crim Liab -.059 e786 'e055 e125 e237 'e023 e696 Fisc Liab e526 “e009 e766 “e132 e07h “0002 e887 Inj Liability .501 -.191 .573 -.263 .387 -.028 .806 Mili-Civil .781 .209 .122 .002 .253 .211 .715 Nat’Denat e580 e157 e555 e009 e623 'e029 e876 NLRA e62h -e113 e573 -03hh e220 -e1h2 e916 Patents .653 -.182 .531 -.312 -.026 ..188 .889 Radio Reg 0057 ’e31h “e100 -.580 e030 -0109 eh59 RLA .270 .878 .838 -.303 -.028 .003 .578 Religion e099 e278 e68h “e093 e267 -e083 e670 searCh & 8912 e170 e828 'eth -e060 -e133 'e09h e755 381 serVic. e0h6 e509 “e003 ’e176 eh9h -0287 e617 Speech .829 -.163 .216 -.165 .180 -.207 .889 St Comn Reg .392 -.135 .577 -.589 .129 -.300 .918 St Tax: Comm .378 -.087 .559 -.569 .218 -.281 .889 APPENDIX 0 Sup Ct Juris Trial: Errors Un: Coll Barg Un: Clos Shop On: Solicit Utility Reg war Powers St Con: Rem App: Sub Rev Collaboration App: St to Fed St Con: Crim Admin Defer Fed-St: Suprem Leg Power Deleg Proportions of Variance .681 .235 .893 .226 .705 .696 .285 .618 .259 .390 .888 .735 .612 .650 .653 21.8% II -e186 -.618 -.193 -0112 .221 'e03]. .239 .220 -.175 -.573 -0188 .291 'e136 .376 8.2% 289 III .801 .815 .257 .288 .288 .273 .695 .256 .660 .218 .192 .129 .888 .535 .216 20.2% IV .126 "e2h6 -e512 "e218 -.396 -.371 'eh68 'e562 -.086 “e532 “e119 “0836 .e21]. -.256 13.2% V ’e06h "eO6h .210 .668 .159 .391 ~33? .210 .187 .801 .206 .871 .208 .222 .388 8.5% VI “0093 .137 -.808 -.329 -.099 “e098 -e2h8 -0296 -e08’.‘. .080 .828 “e016 .106 “.010 .131 5.9% .638 .688 .820 .789 .817 .852 .881 .890 .696 .781 .877 .871 .820 .817 77.9% APPENDIX 0 Antitrust Bankruptcy Claims Coer Conf ICC: PN&C Comn Reg: Rates Jud Rev: Comns Contracts Counsel Double Jeep Emin Domain EPCA Equal Prot Evid: Suff Fed-St: Com Fed-St: Policy Fed-St: Tax Fed Tax: Def Fed Tax: Exes: Fed Tax: Liab Fed Tax: Succ FELA FISA: Contract FLSA: Coverage Full Faith Indian Prop Indian Treat Comity Due Process Jury'Trial Crim Liab Fisc Liab Inj Liab Mil-Civil Nat-Denat NLRA Patents Radio Reg RLA Religion Search & Seiz Sel Service Speech St Comn Reg St Tax: Comm 290 Tau Correlation Matrix Factor Loadings - 7 Factor Solution/Varimax Rotation Analysis I .281 .303 .018 .208 .120 .712 .239 .582 .315 .209 .388 .790 .832 .089 .055 .835 .198 '03h2 -e013 0251 .595 .385 .828 .291 .088 .328 .085 -.021 .630 .321 'e132 .635 .888 .385 .231 .895 .755 -eohz .215 .182 .087 -ezhl .592 .388 .290 II -.070 -.032 .375 .083 -.239 .198 -.1h1 -.080 .109 'eh76 .021 -.118 -.031 .029 -e213 .021 -.230 .066 -0581 .281 ’e378 -.091 -.039 -0083 .107 -.205 .318 .073 “e118 -0160 .805 .020 ’0175 .106 .096 -.131 -.099 -.316 .830 .310 .828 .892 -0183 'e127 -e087 III .833 .800 .103 .386 .711 .301 .316 .656 .627 .810 .252 IV 'eOOh 'e707 “eh13 -e730 -0180 -.385 -.650 -0276 -.133 “e221 “e511 -.187 -.830 'e202 -e231 'eOlh -.295 'e062 “e320 'e701 'e222 -.855 ‘0573 -.236 -0892 -e058 'e223 ‘e156 -.822 -e177 .182 -e066 -e211 .001 .023 -.360 -e235 ‘e621 -.272 -.097 -.088 -.208 ‘e267 'eSBh -e580 V .578 .305 .105 .013 .261 e287 .356 .281 .601 .027 .650 .068 .113 .269 .085 .827 .220 -eOZh .022 .055 .855 .668 .553 .800 .177 .258 -e031 .778 .128 .612 .162 .255 .820 .700 .796 .890 .217 .037 .208 .162 .120 .882 .603 .286 .333 VI .202 .250 .327 .128 .285 .158 -.118 .133 -elhl -.080 .060 -e063 -.050 .780 .051 -.095 .229 ‘e065 .053 .378 .059 .160 .150 .008 .252 .691 -.200 .180 .358 .356 .158 .172 .328 .005 .258 .093 .223 .039 ‘0075 .289 -.198 .151 -.076 .051 .130 VII -eh63 -.193 .298 -.270 -.281 -e073 -.319 -.058 .008 -.868 ’e196 -0078 “elah .089 -.787 'e199 .073 .607 'e307 .035 .185 -.132 -e20h .079 '0091 -.131 -.631 .182 .073 -.299 -.091 ’el7h -e186 .323 'e106 -.135 .028 .063 .131 'e267 .079 “e236 “e116 -.282 -.l98 h2 .860 .988 .529 .817 .798 .866 .881 .880 .901 .709 .938 .885 .891 .738 .765 .871 .760 .816 .587 .733 .792 .922 .968 .866 .823 .756 .598 .780 .758 .832 .761 .912 .816 .775 .878 .923 .881 .898 .608 .700 .758 .618 .853 .922 .898 APPENDIX C Sup Ct Juris Trial: Error Un: Coll Barg Un: Clos Shop Un: Solicit Utility Reg war Powers St Con: Rem Appeal: Sub Rev Collaboration App: St to Fed St Con: Crim Admin Defer Fed-St : Suprem Leg Power Deleg Proportions of Variance I .708 .302 .251 -.o77 .590 .528 .171 .801 .238 .235 .888 .383 .603 .688 .317 15.2% II -.1hh -e6b0 -e 213 -.135 .256 .009 .193 .226 -.193 “e588 -.159 .235 -0108 -0096 .299 7.7% III .198 .812 .266 .287 .180 .150 .638 .216 .687 .161 .157 .111 .379 .376 .261 16.8% 291 IV .096 ’e220 'e632 -.260 -.391 “0355 .216 -.529 -eSZh -.077 'e370 -.135 -.358 -eléh 'e226 12.7% .256 .091 .872 .595 .868 .571 .865 .520 .228 .816 .218 .808 .352 .808 .683 16.6% VI “e010 .118 -.059 .272 .160 .389 -0030 .081 .170 .288 .527 .153 .356 .288 .129 5.7% VII -.221 mOhb 'e230 -.383 -e090 -.187 ’0353 -.l76 .072 "e092 .306 .033 -.102 ‘e176 .238 6.35 .683 .735 .858 .789 .851 .910 .856 .881 .923 .697 .800 .880 .898 .867 .887 80.6% APPENDIX G Antitrust Bankruptcy Claims Coer Conf ICC: PN&C Comn Reg-Rate Jud Rev: Comns Contracts Counsel Doub Jeop Emin Domain EPCA Equal Prot Evid-Suff Fed-St: Comm Fed-St: P01 Fed-St: Tax Fed Tax: Def Fed Tax: Exam Fed Tax: Liab Fed Tax: Succ FELA FLSA: Contract FLSA: Coverage Full Faith Indian PrOp Indian Treat Comity Due Process Jury’Trial Crim Liab Fisc Liab Inj Liab Mil-Civil Nat-Denat NLRA Patents Radio Reg RLA Religion Search & Seiz Sel Service Speech St Comn Reg St Tax: Comm I .310 .293 .025 .185 .183 .666 .205 .563 .299 .286 .328 .792 .888 .013 .065 .835 .191 -e387 -.058 .228 e517 .338 .800 .263 .052 .321 .081 -.086 .636 .336 ‘ellh .658 .880 .355 .215 .889 .787 -.1lh .169 .185 .058 “0255 .581 .328 .301 292 Tau Correlation Matrix Factor Loadings - 8 Factor Solution/Varimax Rotation Analysis II -.053 ”0073 .372 -eOZh “e262 .135 'e198 -.066 .067 -.879 'e038 'e151 -e080 .007 -.227 “e016 -.277 .077 -e608 .077 --833 'e138 -e076 -.152 -e030 -.206 .288 .069 -.138 'elhh .833 .001 ’e166 .080 .093 -.162 ’e131 -e389 .350 .268 .795 .888 -e220 -0185 -e118 III eh23 .302 .023 .319 .685 .287 .255 .581 .621 .386 .238 .811 .611 .088 .208 .679 e651 “e569 -.228 .056 .031 .236 .228 .739 .638 .212 .087 .191 .036 .282 ’e021 .582 .396 .166 .353 .853 .329 ’eOhh .510 .650 “ooh? .075 .103 .888 .852 IV 'e092 'e783 -e521 “0759 -.266 I"e365 -.682 --399 “e188 'e26h -eh96 -.205 'e517 -.228 “eelh 'e071 “0357 .012 -.205 -.751 “e152 -eb60 -e616 “e273 -e587 'e116 -.197 -.199 'e501 “e265 .115 -.179 --339 -.003 -0030 'ehBh -e310 -e528 -.288 -e169 ‘e080 -e229 -.282 -e631 -.680 V .568 .328 .123 .088 .239 .322 .377 .256 .602 .026 .671 .100 .126 .262 .033 .828 .212 ‘e009 .029 .085 .891 .689 .581 .395 .167 .258 'e030 .775 .168 .616 .151 .265 .830 .719 .788 .508 .250 .053 .209 .137 .829 .637 .387 VI “e376 -0157 .360 -0293 -el91 -ells --387 .013 .009 -.810 -.280 “e065 'e156 .082 -e789 'e189 .089 .556 -.378 .036 .105 'e151 -e187 .051 -0059 -e091 'e667 .213 .123 -0209 -.050 -.113 -.077 .301 -0071 -.095 .057 ’eth .057 -0265 .161 ’e227 ’e1h6 -.280 -.137 VII 'e138 -.158 'e183 -0113 -e215 -0209 .138 -e0hl .151 .188 ’e192 .073 .109 -e828 -e092 .078 'e213 .069 ’elhB ’e317 -0159 'e166 -e089 -.087 -.198 -.705 .151 -0120 'e261 'e260 ’e119 -.129 -.199 -.016 -e2h6 'e029 -0191 -e119 -.005 ”0381 .270 -e130 .050 -.019 'e009 VIII -.333 ’ellh -.189 .099 'e168 .271 .057 -.181 .089 -.253 .160 ..072 'e030 .063 -.093 .032 .005 .166 .130 .051 .331 .069 'e056 .186 -.O70 'e108 .082 -e117 “0095 'e3h8 “e103 -.106 -.357 .155 -.109 “.100 .017 .331 .388 .078 .270 -.072 .119 .012 'eZOh .879 .965 .610 .823 .796 .911 .881 .905 .901 .732 .989 .885 .897 .825 .786 .878 .769 .819 .687 .733 .865 .927 .979 .907 .923 .786 .606 .756 .781 .873 .769 .983 .887 .777 .878 .936 .882 .573 .687 .770 .761 .618 .858 .922 .951 APPENDIX 0 Sup Ct Juris Trial: Error Un: Coll Barg Un: Clos Shop Un: Solicit Utility Reg war Powers Stat Con: Rem Ap: Sub Rev Collaboration Ap: St to Fed Stat Con: Crim Admin Defer Fed-St: Suprem Leg Power Dole Proportion of Variance .719 .298 .221 “0077 .587 .501 .187 .351 .233 .228 .816 .295 .602 .636 .268 18.8% II -.139 “0673 "e256 -.135 .211 -.010 .179 .171 -.286 'e587 'e187 .218 'e128 -.119 .256 8.0% III .173 .350 .189 .275 .158 .113 .693 .187 .612 .180 .091 .128 .302 .389 .268 18.3% 293 IV .053 'e236 -.639 ’0299 “oi-[.20 -eh01 .156 “0537 -.603 “e081 'eh28 -0150 -.852 “e227 -0255 15.2% V .281 .027 .896 .578 .500 .599 .837 .589 .231 .816 .282 .828 .379 .823 .700 17.8% VI ’e180 .121 ’e232 “0337 'e106 -.l61 --330 -.208 -.087 “e066 .326 .027 .088 .eth .213 Se8% VII .036 “e036 .118 -0226 -.178 "e316 “.022 -.085 “em 'e28’4 “mi-186 “ele. -.272 'e275 'e138 5.0% VIII -0091 .010 QeO’Jl -.253 .138 -.066 -00).].6 .186 'eOhB -.189 .022 .068 -.131 -.080 .163 2.6% .690 .737 .873 .752 .858 .912 .878 .883 .938 .698 .801 .880 .910 .868 .851 APPENDIX H. STONE ROBERTS BLACK REED FRANKFURTER DOUGLAS MURPHY JACKSON RUTLEDGE BURTON PERCENTAGE RATES OF DISSENT: 1981 18% 16 13 10 17 298 1982 9% ‘1. 13 10 12 18 17 1981-1985 Terms* 1983 '12; 30 18 13 16 16 1 5 17 12 1988 a. 36 19 10 15 15 15 11 18 1985 15% 13 22 16 10 16 15 *Reproduced from the Roosevelt Court, Table XIV, p. 85; the author the columns for the 9 0 an erms from the table. APPENDIX I DOUGLAS BLACK MURPHY REED BYRNES JACKSON FRANKFURTER STONE ROBERTS * Reproduced from the Roosevelt Court, Table XXI, p. 285. 295 INTERAGREEMENT RATIOS - 1981 Term DOUG 95 72 58 53 82 38 23 23 BLAC 95 78 56 62 85 36 25 28 MURP 72 78 58 59 88 53 88 38 REED BYRN 58 53 56 62 58 59 -- 57 57 -- 65 68 61 69 58 61 S8 57 JACK 82 85 88 65 68 68 53 FRAN 38 36 53 61 69 68 70 53 STON 23 25 88 58 61 53 70 70 ROBE 23 28 38 58 57 60 53 70 APPENDIX I BLACK DOUGLAS MURPHY RUTLEDGE STONE REED JACKSON FRANKFURTER ROBERTS * Reproduced from the Roosevelt Court, Table XXII, p. 285. 296 INTERAGREEMENT RATIOS - 1982 Term* BLAC 93 73 88 50 50 86 81 27 DOUG 93 77 87 87 86 29 MURP 73 77 76 88 82 87 82 29 RUTL 88 87 76 55 55 63 55 33 STON 50 51 88 55 68 67 68 62 REED 50 50 82 55 68 70 76 62 JACK 86 87 87 63 67 70 68 57 FRAN 81 86 82 55 68 76 68 65 ROBE 27 29 29 33 62 62 57 65 297 APPENDIX I INTERAGREEMENT RATIOS - 1983 Term* DOUG BLAC MURP RUTL JACK REED STON FRAN ROBE DOUGLAS -- 86 79 72 56 56 55 87 28 BLACK 86 -. 76 78 57 58 58 50 27 MURPHY' 79 76 -- 81 89 53 58 89 38 RUTLEDGE 72 78 81 -- 59 63 62 52 80 JACKSON 56 57 89 59 -- 68 55 71 86 REED 56 58 53 63 68 -- 78 73 50 STONE 55 58 58 62 55 78 -- 70 89 FRANKFURTER 87 50 89 52 71 73 7o -- 62 ROBERTS 28 27 38 80 86 50 89 62 -- * Reproduced from the Roosevelt Court, Table XXII, p. 286. APPENDIX I BLACK DOUGLAS RUT LEDGE MURPHY REED JACKSON F RAN KFURTER STONE ROBERTS * Reproduced from the Roosevelt Court, Table XXII, p. 286. 298 INTERAGREEMENT RATIOS - 1988 Term BLAC 79 78 78 62 53 87 81 DOUG 79 78 78 70 57 52 52 20 RUTL 78 78 79 63 62 56 87 20 MURP 78 78 79 68 57 58 86 25 REED 62 70 63 68 68 67 72 81 JACK 53 57 62 57 68 75 67 85 FRAN 87 52 56 58 67 75 78 61 STON 81 52 87 86 72 67 78 61 ROBE 2O 2O 25 85 61 61 APPENDIX I DOUGLAS BLACK MURPHY RUTLEDGE REED BURTON STONE FRANKFURTER * Reproduced from the Roosevelt Court, Table XXII, p. 287. 299 INTERAGREEMENT RATIOS - 1985 Term* DOUG 71 62 56 58 89 82 85 BLAC 71 67 59 61 57 87 83 MURP 62 67 73 63 56 60 52 RUTL 56 59 73 58 85 89 61 REED 58 61 63 58 68 80 57 BURT 89 57 56 85 68 78 57 STON 82 87 60 89 80 78 65 FRAN 85 83 52 61 57 57 65 Justice Jackson was absent from ti; Court for the entire 1985 Term, thus, the interagreement ratios reflect possible associations among only eight justices.