ABSTRACT THE HUGHES COURT 1931-1936: PSYCHOLOGICAL DIMENSIONS OF DECISION MAKING By Mary Ramona Mattingly This is a behavioral study of the Hughes Court, whose general purpose is political analysis of decision making on the basis of voting behavior during the 1931- 1936 terms. The analysis is part of an ongoing, trans- historical study of the Supreme Court, originally pro- posed by Harold J. Spaeth and outlined in his "Description of Proposed Research," 1967. This study itself is inde- pendent. In the larger research context, its findings are articulated to the higher analytic level of empiri- cally determining Court behavior as continuous decision maker, both functionally and psychologically. In contrast to nonbehavioral studies, analysis focuses on the behavioral, or voting component of Court decision making: i.e., the directionality of the Jus- tices' votes, in terms of +/-; yes/no. Opinion data is a supplementary, secondary tool only. The approach in this political analysis views Supreme Court Justices as policy makers and accepts their policy making as a legitimate, inherent function in such a decision-making body as the United States Supreme Court. Mary Ramona Mattingly making on the Hughes Court. This value system I have labeled "operational government," as it basically con- cerns Court attitude toward a particular, coexisting governmental apparatus, as well as Court perception as to how that government should execute its functional imper- atives. The extremely intercorrelated nature of the data as well as the scalability of mass, gross categories of cases support this conclusion of a simple, one factor structure. The value system contains two maJor and one minor value. One of the maJor values is "public welfare." It pertains to operational government as it exists/operates in public areas. The presence of governmental authority here, representing the general public, is accorded a legitimacy that may at the same time be denied to the actual exercise of its power. The other dominant com- ponent, the "private rights" value, is operative in areas where there is no fundamental consensus regarding even the presence of governmental authority. Its focus is the primacy of the indiVidual. The minor conponent I have labeled the "Judicial process" value. It involves a concern, on the part of the Supreme Court, over the con- duct of Judicial business by lower courts. It is a dis- tinct, Judicial kind of value implying a certain pride of court. This hierarchy thus constitutes the working value system of the Hughes Court. It contains those Mary Ramona Mattingly The model proposed works from Court function (mani- fest behavior) to the psychological structure beyond. This hypothesized structure is conceptualized as a hier- archy of attitude system, value, and value system, ele— ments which together constitute the psychological de- terminants of decision making. The basic theoretical constructs of this hierarchy are largely derived from attitudinal research in social psychology, in particular the work of Milton Rokeach. Spaeth's adaptation of Guttman scalogram analysis is the methodology employed to get at the most basic level of the hierarchy (i.e., atti- tude system). Each scale itself is that construct opera- tionalized. Using Kendall's tau, rank orders of the Justices on each scale are computer-correlated, and the resulting intercorrelation matrix used as input for more complex, multidimensional varieties of analysis. The latter are chiefly principal axes factor analysis with varimax rotation, oblique factor analysis (oblimin III), and hierarchical cluster analysis. Linkages among scales (attitude systems) which these multidimensional techniques suggest allow specification of other levels of the hier- archy. The data consist of all dissensual cases (N = 189) from the 1931—1936 terms, treated within the stimulus- response context developed by Glendon Schubert. The maJor findings of the analysis point to the con- clusion that a single value system dominated decision Mary Ramona Mattingly psychological dimensions primarily motivating the deci- sion making of the years 1931-1936. THE HUGHES COURT 1931-1936: PSYCHOLOGICAL DIMENSIONS OF DECISION MAKING By Mary Ramona Mattingly A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Political Science 1969 - PLEASE NOTE: Not original copy. Several pages have light and indistinct type. Filmed as received. UNIVERSITY MICROFILMS \ / ‘\ l} '. {J 93 m) 1 (3 r» TABLE OF CONTENTS Page LIST OF TABLES. . . . . . . . . . . . . iv LIST OF FIGURES . . . . . . . . . . . . v INTRODUCTION . . . . . . . . . . . . . 1 Chapter I. INTRODUCTION TO THE HUGHES COURT . . . . 13 Setting . . . . . . . . . . . 13 Personnel. . . . . . . . . . . 26 The Political Context and the Hughes Court . . . . . . . . . . . 37 II. THEORY AND METHOD . . . . . . . . . “5 Theory. . . . . . . . . . . . A5 Method. . . . . .~ . . . . . . 55 III. EMPIRICAL DATA . . . . . . . . . . 64 I. The Fifty—Six Variable Sets. . . 68 II. The Thirty-Seven Variable Sets. . 108 III. The Twenty-FiVe Variable Sets . . 118 IV. The Twenty-One Variable Sets . . 13“ IV. SUBSTANTIVE FINDINGS: ANALYSIS . . . . 1A0 NPAR Programs . . . . . . . . . 1&2 Factor Analyses. . . . . . . 1N3 Plots . . . . . . . . . . . . 156 LAWS o o o o o o o o o o o o 15 8 V. DATA AND MODEL . . . . . . . . . . 163 Construction of the Hierarchy . . . . 16H Components of the Hierarchy. . . . . 172 ii Chapter VI. THE JUSTICES ON THE COURT General Orientation Individual Members. Conclusion . APPENDICES . . APPENDIX A: I Fifty-Six Variable Sets Thirty-Seven Variable Sets Twenty-Five Variable Sets Twenty-One Variable Sets. II. III 0 IV. APPENDIX B: October October October October October October BIBLIOGRAPHY . GUTTMAN SCALOGRAMS DISSENSUAL Term Term Term Term Term Term 1931 1932 1933 193“ 1935 1936 iii CASES 1931-1936. Page 187 187 192 2114 217 219 221 261 270 277 282 282 283 28” 28A 285 286 289 Table 1A. AA. AB. “C. 6A. 6B. 6C. 6D. LIST OF TABLES Page Hughes Court: Volume and some parameters of court business, 1931-1936 terms . . . . 23 FACTOR A, 25 variable sets: Two dimension varimax solution . . . . . . . . . . 160 FACTOR A, 21 variable sets: Two dimension varimax solution . . . . . . . . . . 161 FACTOR C, 21 variable sets: Two dimension SOlution. O O O O O O O O I O O O 162 Average ranks from 21 variable sets. . . . 188 Opinion types (dissensual cases 1931-1936 terms) . . . . . . . . . . . . . 193 Authorship tally of dissensual opinions 1931- 1936 terms . . . . . . . . . 19“ Comparison of number of dissensual case opinions with total number of case opinions 1931-1936 0 o o o o 0 o o o o o o 195 iv Figure 5A. 5B. SC. LIST OF FIGURES FACTOR C, 56 variable sets: Two dimension solution . . . . . . . . . . FACTOR C, 21 variable sets: Two dimension solution . . . . . . . . . . . Representation of the hierarchy. Page 169 170 185 INTRODUCTION: A BEHAVIORAL STUDY OF THE HUGHES COURT General Purposes This is a behavioral study of the Hughes Court.. Its general purpose is the political analysis of decision mak- ing on the basis of voting behavior during the 1931—1936 terms. There are to date no maJor studies on this Court. Much impressionistic, unarticulated commentary does exist, due chiefly to the historical and political importance of the New Deal, whose earlier phases parallel and materially involve these terms of the Court. In particular this is true of the last year studied, 1936. There is also some brief behavioral treatment of that Court, though of a supplementary nature. This literature, both behavioral and nonbehavioral, is taken up in the background and con- cluding chapters. Its conclusions are set forth to give some indication of the kinds of previous hypotheses and analyses, most being nonempirical, literary interpreta- tions of Court output. By contrast, analysis in this study concentrates on the behavioral, or voting component, of Court decision making. In other words, it focuses on the directionality (+, -; yes, no) of the Justices' votes, disregarding the accompanying verbiage. Analysis of the impressionistic variety is used to develop and exploit richness of mean- ing from the opinion data, but it remains throughout a decidedly secondary and supplemental technique. The study is also a political analysis, recognizing the Court as a body whose decision makers are indeed policy makers and whose Judicial decisions are the stuff of politics within the federal system. Recognition of this fact prevails among Court watchers of all persua— sions. This approach, however, accepts policy making as a legitimate, indeed inherent function of a decision making body such as the United States Supreme Court. Court policy making is perceived as a vital part of the larger political reality, essential to the functioning of government, rather than an aberration to be decried by critics or disavowed by the Court itself. An equally important purpose of the study is ex- planation and interpretation of Court decision making. As regards its structure, the explanation is given in an empirically ascertainable manner, such that replication is possible and empirical validation of results a process open to any researcher. The steps of the decision making process (both for Court as a whole and for individual members in particular) are in great part beyond the re- searcher's grasp. Vital data on the conference periods, intracourt communiques, and successive drafts of opinions are all cases in point, though even now more information, through biographies and publication of private papers, is available. Lack of definitive interpretation, given such incomplete information, need not preclude greater sophis- tication and reliability in interpretation than hereto- fore. The basic raw data of the votes and rationales written in Opinion form suffice to this, if placed within some plausible theoretical framework. This framework must meaningfully integrate the data (i.e., explain) in terms of the fit between theoretical model and empirical findings. In other words, the explanation is as good as the approximation between theory proposed and results. empirically observed. This is the kind of explanation aimed at. In particular, explanation of Court behavior, given a plethora of discrete, ostensibly unique cases, requires scientific parsimony. This is necessary to avoid fragmen- tation and allow meaningful generalization. Regarding this aspect, the hypotheses and findings of the study tend toward the more general end of the spectrum, both in terms of the Hughes Court as one instance and the Supreme Court as general case. Presumably, in this way a more satisfactory explanation of Court behavior and resulting output if obtained. Overall tendencies and directions are ascertained. Long-term results are indicated. Obviously this could not be done on the basis of one case, or even a number of cases treated discretely. A fairly represen- tative sampling of data containing sufficiently numerous instances alone can get at obJectives such as these. This is a working hypothesis here. Nature of Research Proposed Phenomenon Studied For purposes of this study, the unit of analysis is only one of the Supreme Courts of the United States, that of Charles Evans Hughes. The terms under observation, 1931-1936, start with the first full term of Hughes as Chief Justice (appointed February 13, 1930) and terminate with the 1936 term, the latter portion of which witnessed the so-called "revolution." Within this span of years, beginning with a new chief Justice and ending with a new policy, there is considerable continuity of both person- nel and policy: an ideal condition for observation. Total membership throughout the period was ten, but Oliver Wendell Holmes is excluded, as he sat for a minimal number of cases during the first half of the 1931 term, and resigned January 11, 1932. The stable personnel thus include: Hughes, Chief Justice; and Associate Justices Brandeis; Butler; Cardozo (commission ordered recorded March lfl,1932); McReynolds; Roberts; Stone; Sutherland; and Van Devanter. Context of Research The analysis occurs in an ongoing, transhistorical study of the Supreme Court, originally proposed by Harold J. Spaeth and outlined in his "Description of Proposed Research," 1967. Use of a common model to get at the determinants of Court decision making ensures a compara- tive frame of reference. This study itself is independent. Fitted into the larger context, however, its findings are articulated to the higher analytic level of determining empirically the Court's behavior as continuous decision maker both functionally and psychologically. The model proposed works from Court function (manifest behavior) to the psychological structure(s) beyond (conceptualized as a hierarchy of beliefs, attitudes, values, and value systems). Similarity of model in various research con— texts thus establishes the degree of likeness that ob- tains between both function and psychological structure of successive Courts. Comparison can then be profitably made and scientific, systematic knowledge of Court deci- sion making hopefully advanced. Major Variables The model used to get at the psychological structure of the Court is much indebted to recent findings of social psychology. MaJor variables in the model are the components of the psychological structure: the constructs of attitude, value, and value system. So ordered, this hierarchy forms a kind of psychological pyramid. The base component, attitude, is theoretically reducible to beliefs, though the model in the study is not so con- structed as to determine beliefs per se. Attitudes and beliefs are distinguished on the level of generality, attitudes being formed by a clustering of related be- liefs. In any case, all constructs in the hierarchy are structurally analogous. Attitude is the essential construct throughout. The conceptualization derives chiefly from Milton Rokeach (1968). Stress is laid on the behavioral component of attitude; in particular, the behavioral component taken as the empirically determinable response to attitude obJect or situation. Attitude toward obJect and attitude toward situation together determine the parameters of social behavior, and so specified become the data base for the psychological structure hypothesized. Positioning substantive content (i.e., scale cate- gories) within the various levels of the psychological model is in great part dependent upon interpretation. This is true especially in distinguishing among levels of constructs once operationalized and, on the highest level of generalization, integrating the resultant com- ponents into a psychological hierarchy for the Court as a whole. The presence of a working value system is assumed: the empirical question is its specific composi— tion. While obJection might be taken to this inference, it seems a fair hypothesis that the Court brings to its collective and individual decision making a psychological pyramid of the type hypothesized. Certainly the nature of the Judicial task demands a coherent cognitive map in which some directive psychological hierarchy inheres. The imperatives of Court decision making, in terms of volume and variety, require this. Naturally, which factors dominate a Court's decisional process and what their combination in an hypothesized value system are matters for empirical investigation. Current theory emphasizes the "relatively enduring" nature of attitudes. Thus it accords with the hypothesis that a Court's value system does not vary with each case. Other things being equal, such a value system tends to be, if not invariant, at least stable over time. The asser- tion does not preclude exceptions explicable in terms of other variables and does not exert a deterministic in- fluence on research. A Court can change internally, in terms of personnel turnover, conversions and/or defec- tions from groupings of contemporary membership; ex- ternally, in terms of pressures from, for example, com- peting interest groups, intragovernmental relationships, and public opinion. The policy changes of the Hughes Court amply illustrate this. In relation with Festinger (1957), this value system is viewed as a more or less well integrated and rationally ordered psychic structure. This means, of course, quali- tative differences in the distinct modes of psychic economy and mental equilibrium, both for each Justice and for the Court in toto. A fairly high degree of integra- tion and order can be anticipated in both cases, given the fact that the structure pertains to a body of such rational, articulate respondents as Supreme Court Jus- tices. Data and Manner of Collection To ascertain existence of the psychological structure described, the suggested methodology takes as raw data all dissensual cases (N = 189, excluding expansions and dup- lication from the 1931-1936 terms. As in Schubert's model (1959), these cases are treated within the stimulus- response condition peculiar to the Court. The case con- stitutes a stimulus in terms of activating attitude obJect or situation; the respondent Justice becomes a meaningful conversion unit; and the response is registered in terms of a positive or negative vote (i.e., the behavioral com- ponent only). The cases are initially classified by impressionistic content analysis, after which successive permutations of scalograms are constructed, using Spaeth's adaptation of the Guttman method (1967 and 1965). Such scalograms specify the content of each category (of cases), according to attitude toward obJect (A0) and attitude toward situation (AS) as evidenced by respond— ents' voting behavior. Even after refinement of the data within categories, the complexity of the scales prevents their representing so basic an element of the psychologi- cal structure as attitude. They more plausibly represent attitude systems, the next general level between attitude and value. Previous research suggests the apprOpriateness of this modification of the original model. As a result, the construct "attitude" (attitude system) has been operationalized as a set of cumulatively scalable cases (i.e., a Guttman scalogram). As these scales are the basic data for all subsequent analysis, their validity is crucial to determining the key psychological factors in decision making on the Hughes Court. Various computer programs, chiefly principal axes factor analysis with varimax rotation, oblique factor analysis (oblimin III), and hierarchical cluster analysis, have been utilized. The input matrix for these consists of tau correlations originally computed from the rank orders of each Justice on each scale constructed. The general effect is to largely sacrifice the individuality of Justices and cases to the generality of "the Court." In this way, however, it is possible to construct the working value system of the Court, a much more important 10 form of knowledge, in terms of level of generality, em- pirical simplification of a mass of data, and explanatory power. The merits of this methodology lie in its sim- plicity, directness and order. The more notable in- stances of misfit between data observed and the hypothe- sized relationship prove the model no procrustean bed, as is also true of the "reality out there" which it proposes to approximate. Summary In sum, I prOpose a political analysis of the deci- sion making process of the Hughes Court. The theory used to direct this endeavor postulates a psychological struc- ture, hierarchical in form, of belief, attitude, attitude system, value, and value system--elements which together constitute the psychological determinants of decision making. Spaeth's adaptation of Guttman scalogram analy— sis is the basic methodology employed to get at the most basic level of this hierarchy in our modification of the original: the construct of attitude system. The scales themselves are that construct operationalized. Using Kendall's tau, rank orders of the Justices on each scale are correlated by computer, and the resulting inter- correlation matrix used as input for more complex, multi- dimensional varieties of analysis. Linkages among scales 10 form of knowledge, in terms of level of generality, em- pirical simplification of a mass of data, and explanatory power. The merits of this methodology lie in its sim- plicity, directness and order. The more notable in— stances of misfit between data observed and the hypothe- sized relationship prove the model no procrustean bed, as is also true of the "reality out there" which it proposes to approximate. Summary In sum, I propose a political analysis of the deci- sion making process of the Hughes Court. The theory used to direct this endeavor postulates a psychological struc- ture, hierarchical in form, of belief, attitude, attitude system, value, and value system--elements which together constitute the psychological determinants of decision making. Spaeth's adaptation of Guttman scalogram analy- Sis is the basic methodology employed to get at the most basic level of this hierarchy in our modification of the original: the construct of attitude system. The scales themselves are that construct operationalized. Using Kendall's tau, rank orders of the Justices on each scale are correlated by computer, and the resulting inter- correlation matrix used as input for more complex, multi- dimensional varieties of analysis. Linkages among scales ll (attitude systems) which the multidimensional techniques suggest allow the specification of other levels of the hierarchy. In practice, attitude systems, values and value system are the levels treated: the last two levels derived from more intensive research on the first. Regarding decision making on the Hughes Court, one might generally hypothesize that: As for the Court's value system: given the nature of the maJority of cases coming to the Court during the 1931—1936 terms, Court response generally is in terms of an attitude toward governmental activism. In other words, most cases tap response based on attitudes toward governmental regulation of economic activity. This in turn implies that the working value system of the Hughes Court is predominantly economic in content and geared towards those aspects of political life. As for the actual decision making context of this Court: that the psychic structures of individual Justices may be shown to be stable over time in terms of the persistency of voting alignments. The general effect of individual stability is, under usual conditions, predictability of the output of the whole Court. Such predictability is, of course, consequent upon stability in the value systems of component members. If, however, this stability is disrupted, explanation lies in the temporary dominance of 12 an external variable(s). One can predict that should this dominance become permanent, the psychological structure will change accordingly, thereby reducing dissonance and restoring a psychologically consonant situation within. Examination of these broad hypotheses, in terms of the theory and methodology roughly indicated in this introduction, seems capable of specifying the nature of decision making on the Hughes Court and isolating some of its determining factors. The results should be able to both explain, and in some manner predict, the kind of decisions characteristic of the Hughes Court. Subsequent chapters detail the theory and model, as well as describe the empirical data and the methodology used in their analysis. CHAPTER I INTRODUCTION TO THE HUGHES COURT Setting Legal, Intellectual Ambience That the Court functions within a larger society subJects it to various forms of extracurial influence. The intellectual milieu is one of these. It embraces broad, influential currents of contemporary thought that relate to pivotal areas of society. It is composed of kinds of thought generally exercising a persuasive, effective force. These form more or less well-integrated ideologies which enable men to rationally emcompass their world and meaningfully interpret the cosmic givens. The two-way influence between men and ideas thus constitutes an important contextual variable. The following examines such a milieu, first in terms of generally dominant ideas of the period; second in terms cf specifically Court- related ideas. Pertinent in the first category are capitalism, the business ideology, and law. At any historical period, the form of capitalism (structure of the economic system) in great part 13 14 determines the nature of raw data presented to the Court. Adopting Max Lerner's (1933, pp. 678+) terminology, the forms of capitalism influencing the Hughes Court were industrial, 18U0-1880, which saw the philosophy of com- petition and entrepreneurship become society's working hypothesis; monopoly, 1880-1914, in which economic power reached unprecedented concentration, while disenchantment with capitalism itself became prevalent; and finance, l9lM-about 1930, wherein financial control became the new area of dominance, displacing industrial organization as the source of power in the capitalist system. The first two chronological periods seemed to corroborate a prior faith in individual initiative and entrepreneurship. The last shattered the structure of the old organizational context but left its faith surprisingly intact. The relevancy of that faith was then a matter of differing perceptions, if indeed perceptions entered into it at all. The capitalism of the thirties, following these older forms, was Just evolving purposes and techniques. Its tentative nature probably enhanced the older, individual-focused ideology, which formed the substructure for the preceding forms of capitalism. In any case, the new form had yet to supplant the old faith, though there were already breaches in the wall. Business as an integral value of capitalist ideology prevailed throughout these periods, its argot unchanged, 15 implying that certain basic capitalist beliefs had not changed through time, though vast changes had taken place in the society and economy. Optimistic commitment to the national ideals of individual freedom and a philosophy of fair play led naturally to advocacy of a restrained government and a pro—system orientation (Prothro, 1954, pp. 81-88, 115). This pro-system orientation was, in effect, pro status quo, which meant minimal government intervention and maximum freedom of enterprise. Government's functions were protection of life and property, and rule maintenance in an otherwise free- wheeling game. The dualism in this restricted concept of governmental power was the public-private distinction. Business ideology was elitist, individualist, materialist, and antipOpulist (Iggg., pp. 115, 118, 178-18”, 219). The answers it developed were variations on these basic themes. Yet there were ideological differences within, and perhaps much can be made for the case of small business- men as the hard—core faithful (Bunzel, 1962, pp. 12u+). Big business, on the contrary, had not the same inflexible devotion to the pre-industrial values. Its ambivalence to government brooked considerable traffic with the enemy. Especially after the 1930's, big and small busi- ness went separate ideological ways. The former came to terms with the latest form of American capitalism, 16 especially its consequences in terms of human organiza- tion, as the latter never could. American law also propagated a legalistic version of lay individualism (Lerner, 1957, pp. A28+). Law and society celebrated the same attributes of property ownership, liberty, and the primacy of reason in the average man. The law was no stratified code of abstract right and wrong. Its structure was rather a labyrinth of concrete, discrete instances bounded by uncodified but compelling "American " principles. Legal craftsmanship focused on maintenance of individual freedom and protec- tion of acquisitive rights in a prOperty-minded economy. The American Bar Association itself, influential public of the Court mediating between it and society, in A the sense of interpreting Court to public and in provid- ing an available source of outside contact for the Court, had been organized in 1878 by an elite of American law- yers. Its representative member suggests the ABA indeed functioned as a kind of "sweing circle for mutual educa- tion in the gospel of laissez-faire" (Corwin, 19Al, p. 85). Certainly, as Corwin notes, its proselytizing in- fluence reached the Court, notably by association members- become-Justices (e.g., Brewer and Sutherland) (gggg,, pp. 8A-87). Above these ideas were American translations of liberal and conservative traditions. Both constitute 17 distinct thought patterns while drawing from the same humanist, individualist symbols (Lerner, 1957, pp. 727— 730). Making its version of individualism accord with the natural order, conservatism very nearly preempted the high ground of principle but fell short on the lower level of practice, a fact excruciatingly apparent by the second and third decades of the twentieth century. Con— siderably more attentive to the necessities of the lower level, liberalism also had its defects. Among these were an atomistic intellectual heritage incapable of linking individuals into a society, and an overly sanguine com- ception of human nature. The added tendency for a pragmatic orientation to become autonomous worked havoc with liberal standards and obJectives. Impressions and hypotheses abound regarding the mystique of the Court. Recent scholarship stresses the psychological, with the Court perceived as fixed point in an excessively fluid society; sure source of truth among a welter of counterclaimants; necessary authority figure. That some public reverence given the Constitution trans- fers to its named guardians is hardly contestable. But this state of affairs is variable, witness the educative decade of the 1930's. 1Lerner, 19Al, pp. 2A9+, treats the "divine right of Judges" as the American adaptation of a very old world institution. 17 distinct thought patterns while drawing from the same humanist, individualist symbols (Lerner, 1957, pp. 727- 730). Making its version of individualism accord with the natural order, conservatism very nearly preempted the high ground of principle but fell short on the lower level of practice, a fact excruciatingly apparent by the second and third decades of the twentieth century. Con— siderably more attentive to the necessities of the lower level, liberalism also had its defects. Among these were an atomistic intellectual heritage incapable of linking individuals into a society, and an overly sanguine com- ception of human nature. The added tendency for a pragmatic orientation to become autonomous worked havoc with liberal standards and obJectives. Impressions and hypotheses abound regarding the mystique of the Court. Recent scholarship stresses the psychological, with the Court perceived as fixed point in an excessively fluid society; sure source of truth among a welter of counterclaimants; necessary authority figure.1 That some public reverence given the Constitution trans- fers to its named guardians is hardly contestable. But this state of affairs is variable, witness the educative decade of the 1930's. 1Lerner, 1941, pp. 2A9+, treats the "divine right of Judges" as the American adaptation of a very old world institution. 18 Courts also Operate from end positions in funnels of causality, where the legal heritage conditions both Judge-respondent and response. Certain legal concepts prominent since the latter nineteenth century set the terms of bench-bar dialogue. Due process of law is one example. Considerably expanded from its procedural origins, substantive due process represented an updated natural rights argument, mainly for use against the flood of social welfare legislation.l Such works as Cooley's Treatise also aided in this shift from personal to pro— perty rights and the corollary right of liberty of con- tract. Due process was both applied doctrine and legal underpinning for laissez-faire economics. Courts using it in effect became guardians of the negative state (Fine, 1956, pp. lAOLIAl). Until the turn of the century, such guardianship pertained mainly to state legislatures. Confrontations between laissez-faire and the welfare state tended to involve lower levels of the federal structure. However, the substantive interpretation came from the highest Court and,together with Cooley's doctrine of implied 1 37A+. A historico-legal approach: Dorsey, 1953, II, 19 limitations, could be applied to the federal government as well.1 Given the divergent course of constitutional doc- trine, the Court, especially in the twentieth century, had two equally authoritative traditions and could choose either. Thus Corwin sees the Judicial review of the period as involving maximum Jural freedom (193“, pp. 180- 183). But choice of options is the heart of the decision making process, Judicial or whatever. Corwin's mislead- ing statement, which seems to imply Jural freedom as an unusual condition unique with the Hughes Court, is better taken from the standpoint that each tradition had equally impressive antecedents. In that sense neither choice could damage Court prestige by its parvenu character. But choice as usual still remained. These ideological strains were part of the back— ground of the Hughes Court. They represent the lowest common denominator in its intellectual heritage and as such, a commonly held source of influence. Though influence is differentially received, any milieu distributes roughly the same kinds of influence in the sense of circulating common ideas, beliefs; 1A different view: Warren, 1926, II, 7Al-750, who sees the Court as "bulwark of the State police power." The reference is to nineteenth and early twentieth century decision making. l9 limitations, could be applied to the federal government as well.1 Given the divergent course of constitutional doc- trine, the Court, especially in the twentieth century, had two equally authoritative traditions and could choose either. Thus Corwin sees the Judicial review of the period as involving maximum Jural freedom (1939, pp. 180— 183). But choice of options is the heart of the decision making process, Judicial or whatever. Corwin's mislead- ing statement, which seems to imply Jural freedom as an unusual condition unique with the Hughes Court, is better taken from the standpoint that each tradition had equally impressive antecedents. In that sense neither choice could damage Court prestige by its parvenu character. But choice as usual still remained. These ideological strains were part of the back— ground of the Hughes Court. They represent the lowest common denominator in its intellectual heritage and as such, a commonly held source of influence. Though influence is differentially received, any milieu distributes roughly the same kinds of influence in the sense of circulating common ideas, beliefs; 1A different view: Warren, 1926, II, 7Al-750, who sees the Court as "bulwark of the State police power." The reference is to nineteenth and early twentieth century decision making. 2O fostering certain Similar kinds of attitudes, in the public generally. Some of these have been indicated here. Court Administration In the administrative area, the Hughes Court was an early beneficiary of the 1925 Judiciary Act. Passed after Taft's extensive lobbying (Murphy, 1969), it repre- sented the latest in a thirty year span of Jurisdictional limitations and effected a notable difference in the kinds of cases coming to the Court. Common law matters and federal specialities no longer were prominent. The new tOpics centered instead upon questions of public law, particularly the relationships of government and economic enterprise. The Court's case matter thus diverged from that of state courts (Sprague, 1968, pp. 70-73). The old norm of unanimity was gradually surmounted by a new one which emphasized divisive tendencies, another consequence of the new act (Frankfurter and Landis, 1928, pp. 299—303). Certain administrative characteristics of the 1931—1936 terms might here be mentioned. Despite a narrowing of obligatory Jurisdiction, the Court voluntarily increased its discretionary load. At the 1931 term, Federal Employees Liability Act cases met surprising success in petitions for certiorari. Such a "wasteful" situation seemed due to the statute itself and 21 to the fact that demand by even three members could force acceptance (Frankfurter, 1932, pp. 238+). The following term the number of certioraris in- creased while appeals decreased,l indicating that the Court was availing itself of a new area of control. Such power over input allowed the Court to determine the kinds of cases adJudicated. In practice, this meant more cases pertaining to government. The decrease in state court cases to 33% of total adJudications, and increase of cases decided with opinion, were both attributed to the Act. To general approval, the Court was now properly attentive to the instruction of lower courts and the bar, setting forth in reasoned, instructive opinions, some rationale for the result attained. The 1933 term saw further increase in litigation, much from depression conditions and the administration of federal tax law. Socioeconomic enactments of state legis- latures were still a future though certain source of Court business. Unnecessary litigation now, especially in the area of certioraris, derived from the insubstantial nature of cases submitted. This suggested the need of a bar better instructed in the nature of the writ and more selective in Judging the merits of cases to be submitted (Frankfurter and Hart, 193“, pp. 2AA+). 1Granted certioraris accounted for 7A% of full Opinions,Frankfurter and Hart, 1933, pp. 268-269. 22 The Court stayed abreast of its docket: 193“ marked the sixth consecutive year. The volume of certiorari cases again indicated the growing importance of discre- tionary, and the relative decline of obligatory, Juris- diction. One out of every five petitions for certiorari was accepted, which in itself represented a relatively high ratio of acceptance. This also indicated the Court's willingness to allot these a decisive weight in its total business. In view of these conditions, the Court's use of memorandum orders proved administratively and substantively beneficial. The burden of numerous full Opinions and imprecise nature of per curiams were both avoided (Frankfurter and Hart, 1935-1936, pp. 69- 76). The 1935 and 1936 terms continued preceding trends: a mounting number of certiorari cases and the problem of a miscellaneous bar, in contradistinction to a specialized bar practicing solely before the Court. Denials of the writ which did occur were consistently upon the basis of insubstantiality, and suggested some maladJustment be- tween bench and bar. Agreement regarding substantiality was still lacking. In the larger context, these were the administrative pieces of the political-constitutional controversy which penetrated all levels of the federal system. Lower courts' restraining orders against execution of 22 The Court stayed abreast of its docket: 1934 marked the sixth consecutive year. The volume of certiorari cases again indicated the growing importance of discre- tionary, and the relative decline of obligatory, Juris- diction. One out of every five petitions for certiorari was accepted, which in itself represented a relatively high ratio of acceptance. This also indicated the Court's willingness to allot these a decisive weight in its total business. In view of these conditions, the Court's use of memorandum orders proved administratively and substantively beneficial. The burden of numerous full Opinions and imprecise nature of per curiams were both avoided (Frankfurter and Hart, 1935-1936, pp. 69- 76). The 1935 and 1936 terms continued preceding trends: a mounting number of certiorari cases and the problem of a miscellaneous bar, in contradistinction to a specialized bar practicing solely before the Court. Denials of the writ which did occur were consistently upon the basis of insubstantiality, and suggested some maladJustment be- tween bench and bar. Agreement regarding substantiality was still lacking. In the larger context, these were the administrative pieces of the political-constitutional controversy which penetrated all levels of the federal system. Lower courts' restraining orders against execution of 23 .Hnmnoaunmo cam Havana moosaoc« :o: mopmoanfiunmo paw «nanoaunoo .Hmoaam movsaocfi :9: "©0002 mHmccmno mefilfimoz .omanfimmmao om mmwmo no nmpesc Hugo» can: UOnMQEOO .mmmmo no nonesc pmownma wnficfimucoo anowmpwo poofinsmm a um.mm Rm.o: mmH no RH: no mm .o no mma no Hma mad no mm mmm am: no 50H .9 nonpwxmu Hmnwnwn and no mm .m oom mmoa no Ham omma n:.sm no.m: «am no an no 2w .0 no 53H no moa wna no om Ham no: no mHH .n conumxmu Hmnmcmn RwH no om .m wmm msoa no 0mm mmmH no.mo no.mm nan no mmm no on .o no omH no mm mma no mm mmm mmm no Hma .n conpmxwp Hmnmomn Mma no mm .m mam mmoa no mmm :mma ua.am Rm.mz won no no: no NOH .o no mma no NMH mma no em nmm am: no oHH .n cofipmxmn Hmnmnon «ma no mm .m cum MHHH no Hmoa mmma um.sm wa.m: mam no wmm no on .o no mza no 20H won no 0: mam am: no sea .9 coHumeu Honopmn A “ma no H: .m saw waoa no mom mmmfi um.mm Rm.s: “am no am: no NOH .o no wmfl no mmfi omH no mm omm no: no :m .n nonumxwp Hmnwnwn nna no on .m mom MQOH no mmm Hmma conponnwfinsw connofinmfinsw z _ who mumum pmmcwfic .o mEmHnso nma umpmxooo nmcofipmnomna anopmwfiano mmcoficfiqo no medam no mp0 nHo .n mpo awn .m can coficfiao Hash Hmpoe no p30 nmm» nouns: powwozm zofi>mm znwcofipmnomfim Ham>finn< no 060: mommo ompmHano ”sconssonesns< .mEnOp wmmnuamma .mmocfimsn unSOO no mnmpmsmnma mEom pcm oesao> ”unsoo mmcwsmlu. .6) cluster seems concerned with legislative power regulating certain aspects of the state or national economy. The 5 .9 l(I-J-l); (I-J-2); (I-C—13); (I-C-19); (I-c—15); (1-0-19;; (I-C—19); (I-E-26); (I—E-SO); (I—E-Sl); I-F—S . 195 aspect, some sense of the boundaries of power, but this is pervasive and ill-defined across levels of subJects. Factor IV does little more than account for an addi- tional, and negligible, per cent of the total variance. The uniformly high correlations of FACTOR A other— wise, as well as the nondistinctive nature of factors after factor I, did suggest the plausibility of an oblique solution. In FACTOR C, solutions deteriorate as factors were added and there is a good correspondence with FACTOR A, especially in terms of factor loadings. In essence, two different kinds of factor analysis basically corrobo- rate the same kind of findings. In the two dimension solution (row vectors of original length), loadings on both factors compared rather well with FACTOR A to dimension varimax, though FACTOR C loadings tend to be lower. Court response ap— pears negative generally to regulation state/federal (in certain areas) but more negative in state. Regarding factor I, the most highly (:‘.7) correlated clusterl suggests the general issue of delimiting permissible bounds of governmental authority. The (.5 > .6) cluster seems concerned with legislative power regulating certain aspects of the state or national economy. The i .9 1(I-J—i); (I-J-2); (1-0-13); (I-C—l9); (1—0—15); (1-0—17); (I-c-19); (I-E-26); (I-E-So); (I-E-Sl); (I-F-Sh). 195 aspect, some sense of the boundaries of power, but this is pervasive and ill-defined across levels of subJects. Factor IV does little more than account for an addi- tional, and negligible, per cent of the total variance. The uniformly high correlations of FACTOR A other- wise, as well as the nondistinctive nature of factors after factor I, did suggest the plausibility of an oblique solution. In FACTOR C, solutions deteriorate as factors were added and there is a good correspondence with FACTOR A, especially in terms of factor loadings. In essence, two different kinds of factor analysis basically corrobo- rate the same kind of findings. In the two dimension solution (row vectors of original length), loadings on both factors compared rather well with FACTOR A to dimension varimax, though FACTOR C loadings tend to be lower. Court response ap- pears negative generally to regulation state/federal (in certain areas) but more negative in state. Regarding factor I, the most highly (:‘.7) correlated clusterl suggests the general issue of delimiting permissible bounds of governmental authority. The (.5 > .6) cluster seems concerned with legislative power regulating certain aspects of the state or national economy. The i .9 1(I-J—1); (I-J-2); (1—0-13); (I-C-l9); (I-C-15); (1-0-17); (I—c-19): (I-E-26); (I-E-SO); (I-E-Sl); (I-F-59). 196 correlations appear connected with appeals to higher (federal) standards. Probably a fair play aspect is indicated. Regarding factor II, the highly correlated clus- ters (.5 > .7)1 present the issue of the individual's right to be secure in possession of prOperty or in prOperty/contractual rights. Negatively correlated clusters2 suggest the issue of state/federal government exercising power for public purposes and designating those subJect to that power: i.e., government activism. This seems logical, if factor II is, as hypothesized, an attitude toward individuals or individualism. Oblique rotation seems Justified: the factors appear interrelated. Their interdependence seems further Justified in view of the Court's assumed role as pro- tector of the Constitution they perceive. In other words, both factors hypothesized are considered in adJudication. Indeed, many cases explore the relation between them, though chiefly in an economic context. There is no dif- ficulty in seeing such factors, within the forum of the Court, translate into competing values and value systems, in terms of which Court decisions are made. l(I-c-23);(I.c_30); (I-E-39); (I-E-AS); (I-F-96)3 (I-F-98); (I-F-53); (I-F-56). 2(I-J-l); (I-J-2); (I-E-26); (I—E-27); (I-E-38); (I-E-so); (I-E-51); (I-F-su). 197 The three dimension FACTOR C solution is basically similar to the varimax counterpart in FACTOR A. As be— fore, especially on factor I, the latter is characterized by higher loadings on more variables. Given the hypo- thesized factors I, II, III, as government power; indi- vidual; Jurisdiction, correlations between primary fac- tors here seem reasonable. I and II correlated .63; I and III, .63; and II and III, .90. Clusterings in the four dimension solution again suggest that solutions do not improve by adding factors. Correspondence with FACTOR A held. To sum, throughout all FACTOR C rotated solutions, 1—9 dimensions, there prevails a correspondence to FACTOR A. In all cases, FACTOR C loadings are uniformly lower: .6 in FACTOR A would be .3 in FACTOR C. Thus all high loadings in FACTOR A will not have exact correspondence with those in FACTOR C. Loadings high in FACTOR C in one pattern are also high in FACTOR A on that pattern in the same dimension. It is the inverse that is not necessarily true. Although in the actual analysis I minimize the 56 variable set, a rather lengthy interpretation of its factors is offered here, as the factors themselVes tend to remain stable, even though their content is progres- sively reduced. In FACTOR A and FACTOR C, 56 variable sets, core variables for factor I are: (I-J-5); 198 (1-0—19); (I—C—IS); (I-C-17); (I—C-l9) (I-E—38); (I-E- 51). (I-J—5) is connected with Prohibition, the conduct of federal agents, and XIV amendment requirements. (I-C-l9) concerns interpretation of state/federal sta- tutes and international treaties. With few exceptions, (I-C—15), (I-C-l7), and (I—C—19) involve the same. (I-E—38) takes up insurance policies and claims, while in (I—E—Sl), XIV amendment considerations predominate, state tax cases being the most numerous category. The predominance of C categories in factor I derives from the fact that the same cases are involved, but in mul- tiple arrangements. In this factor, J and C cases are chiefly procedural, Prohibition and XIV amendment con- nected, and involve statutory regulation in noneconomic areas. Dominant concern here is with the kinds of things the Court can take cognizance of as being individual, noneconomic rights constitutionally guaranteed. The context is one wherein such rights appear threatened by Operation of state or federal statute. The Court is asked to intervene between individual and questioned authority. These rights are miscellaneous: right to act as Juror, self incrimination, and Jury trial. The E cases in factor I represent unquestionably attitude to state tax power. The Court is asked to determine the constitutional scope of the power in the case at hand. 199 As state tax on business enterprise is prominent, the category taps Court attitude to that power, and to that private enterprise subJect thereto. Drawing all these cases (J, C, E, and F) together, factor I can be viewed as having a preponderant attitude to government regulation component. Government is state or federal; regulation is in economic or noneconomic spheres; subJects range from individual to corporation. Perhaps this is why the factor explains so much of the common variance and why it definitely is not pure. Labels such as right to regulate, government activism, the posi- tive state, and statism all apply, being synonymous in effect. Factor II contains core variables: (I-E-95); (I-F—96); (I-F—98); (I—F-53); (I-F-56). (I—E-95) con- cerns insolvency and the legal status of parties in- volved; (I—F-96),taxes concurring with transfer of pro- perties as gifts. Modes of action for recovering money from government and determination of what is properly taxable dominate (I-F-98), while (I-F-53) details sub— Jects of federal tax laws and their reaction to such subJection. (I—F—56) deals more directly with the gen- eral subJect of (I—F-98). This factor's dominant as— pect appears to be federal tax power, operative in revenue acts and New Deal legislation. Factor 11 appears rather more pure than factor I, the Court here passing Judgment on federal fiscal policy. In this respect, factor 11 represents the economic as- pect of factor I. In another respect, given the Court's generally negative response, it opens the issue of Manchester style liberalsim (as economic individualism or the necessary underpinnings of the entrepreneurial ethic). There is Operative a notion of individual economic rights, bestowed by an impartial, natural economy. There is also an implied "ethical" corollary that what one gets by dint of individual initiative, one by rights can hold against all comers, including the federal government. Factor III has only one core variable (I-E—27), which seems most concerned with economic rights in a federal system, or the economic rights of business under plural authorities (given the intergovernmental tax immunity aspect). This immunity tends in practice to Justify nullification of state tax power as a means of control. The results of FACTOR A for 37 variables was so similar to the 56 variable set that we decided against running FACTOR C. Two factors at most, which possibly could become one if the data were tightened up, were defined. In quartimax two dimension, 80% of the vari- ance was distributed between factor I, .75 and factor II, .06. In varimax two dimension, only the distribution 151 changed: factor I, .95; factor II, .36. In the three dimension varimax, factor III added 6% to this variance and left the distribution: factor I, .32; factor II, .26; factor III, .28 (almost identical with that solu- tion in FACTOR A, 56 variable set). Save for (II-E-28), there were no "new" < .7 communalities, the "Old" being: (II—J-3); (II—E—l6); (II-E—25); (II-E-39). The i .9 loadings on factor I in quartimax were comparable: (II-J-9); (11-0—5); (11-0-6); (II-C-8); (II-c-9);.(II— C-lO); (II-C-ll); (II—C—l2); (II—E-19); (II-E-21); (II-E-29); (II-F-32); (II-F—33); (II-F-35). Factor I supports the interpretation of attitude to government exercise of basic sovereign powers (e.g., tax power; power to legislate for the public welfare; powers in Bill Of Rights protected areas). Factor II again has the idea of limitations upon the statutory power of government, and the more positive counterpart of constitutional guarantees Of the individual against total government. The label Of individualism in legal/ economic terms is as applicable here as in FACTOR A, 56 variable sets. The pattern of the two dimension varimax indicates factor II as the individualist factor of quartimax. Some idea Of what is due the individual, in terms of economic/ noneconomic rights from and against government appears Operative. As before, adding a third dimension did not 152 improve the loading patterns. It did emphasize the changed pattern that combined scalesl can cause. Other- wise, its utility is minimal. No loading is Z .9, and the previous pattern is distorted in not too meaningful fashion. It is still interpretable in terms of Juris- diction. In the FACTOR A, 25 variable sets, two dimension quartimax accounted for 81% of the variance; factor I, .73; factor II, .08. The two dimension varimax, 81%; with .97 on factor I; .39 on factor II. The third di— mension increased the variance to 86%, the distribution being: factor I, .29; factor II, .22; factor III, .90. In both two dimension quartimax and varimax, (III—J-2), (III—C—9), and (III-F-29) have < .7 communalities, while the three dimension solution had none below .79. The Z .9 two dimension quartimax loadings on factor I (and two dimension varimax is generally similar) are: (III—c-S): (111—3—15); (III-E-l6); (III-E-l8); (III-E- 20); (III—E-2l); (III—F—23); (III-F-25). All suggest factor I represents an attitude toward governmental power, specifically in the areas Of tax regulation. This is most apparent when examining the A03 and ASs Of the variables with 1 .9 loadings. 1The 37 variable sets are unique in that all vari- ations Of the original 56 variable sets are combination scales. This is true of no other subsequent permutation. In two dimension varimax, highest loadings on factor II are: (III-E—7); (III-E-ll); (III-E-l3); (III-F-29). This in no way disturbs the previously hypothesized individualist orientation. Highest load- ings occur most Often with an A0 of assessed taxpayers, government employees, contractors, and parties accused of crime. There is a legalist slant, indicating AS is perceived in terms Of litigant's legal prerogatives and written constitutional guarantees. The three dimension varimax loads highest on (III—E-l9), (III-E-l6), and (III- F-25), though a number of higher loadings occurred in factor 1 Of quartimax.l The Jurisdictional aspect is still apt. AO orientation stresses inherent rights such as acquisition, maintenance, and development of property. In sum, an assumed natural right to prOperty. In FACTOR A, 21 variables, the two dimension quar- timax takes into account 82% Of the variance: .73 on factor I; .09 on factor II. The varimax counterpart, with 82% of the variance, loads .96 on factor I; .36 on factor II. No third dimension was run, but in the fourth dimension, 90% Of the variance was thus distrib- uted: factor I, .90; factor II, .12; factor III, .12; factor IV, .26. In both two dimension solutions, the 1(III—J-l); (III-C-S); (III-E-9); (III-E-l2); (III-E-lS); (III-E-18); (III—E—19); (III-E-20); (III-E-2l); (III-F-22). 151: communalities < .7 are identical: (IV—J—2); (IV-C-9); (IV-F-20). The fourth dimension had none less than .7. Two dimension quartimax loadings .9 on factor I are: (IV—E-7); (IV—E-9); (IV-E-12); (IV-E-16); (IV-E-l7); (IV—F-l9); (IV—F—2l). The fourth dimension is identical with the FACTOR A, 25 variable set; all are associated with governmental power. In two dimension varimax, highest (3 .8) loadings on factor II are: (IV-E-6); (IV—E-lO); (IV-E-19). Load- ings Z .7 are: (IV—J-2); (IV-J-3); (IV-C—5); (IV-E-8); (IV-F—2O). For all variables, the individualist inter- pretation is plausible. The nature Of the four dimension solution suggests a fourth factor as superfluous. The generally lower correlations among primary factors and the per cents Of variance accounted for in FACTOR C, 21 variable set (as compared with FACTOR C, 56 variable set) seem concomitant with the reduction of variables tO 21. Correlation among primary factors of the fourth dimension solution (much higher than the two or three dimension solutions) seem to bear this out: a .70 correlation be- tween factors I and II in the fourth dimension solution, as compared with .98 for the two, and .96 for the three dimension solutions. In the two dimension solution (row vectors Of original length), the highest (1 .8) loadings on factor I are: (IV-C-9); (IV-E-7); (IV-E-ll); (IV-E-l3); 155 (Iv-E—15); (IV-F—l9); (IV-F-21). Included (3 .5) could be: (IV—J-l); (IV—E-9); (IV-E—l2); (IV-E-16); (IV-E-l7); (IV-F—18). For factor II, the highest (1 .9) are: (IV-J-7) the only one at .83; (IV-E-6); (IV-E-8); (IV-E- 10); the last three having only .90-.97 loadings. A rough correspondence between this solution and the two dimension solution of FACTOR A, 21 variables, exists in terms Of the loading pattern. The discrepancy lies in the noted fact that FACTOR C loadings are characteristi- cally much lower than those of FACTOR A: a .5 FACTOR C = .7 FACTOR A; a .2 FACTOR C = .5 FACTOR A. The hypothesis remains: that factor I predominates; that it represents an attitude toward exercise of the government's sovereign powers (cf., p. 151). In general, however, these powers are historically recognized and Of a public nature. Also, factor II here seems to approxi— mate an attitude towards exercise Of government powers in areas rather more private, where government functions variously as watchdog or usurper of relationships that may have public aspects but which are yet perceived as basically private. In other words, these relationships are perceived as an area more immediately involving in- dividuals. Thisis particularly salient in the contract and liability cases. Government in this area occupies a position comparable tO that Of parvenu, in the sense that it is not at all Obvious or settled what exactly 156 is government's role. In the areas associated with the first factor, it can be equally argued that historically, government is not a new arrival but rather an habitué merely functioning in new, heretofore unused ways. Adding a third dimension which loads heavily on (IV—F-20) suggests again the Jurisdiction concept. Given the specific universe Of content, it seems to mean get- ting One's Just due from Caesar or whomever. Considered as a whole, a fourth dimension adds little, save for (iV-J-2), a consistently anomalous variable, but detracts much, especially regarding variables without significant loadings. Its merit consists in indicating the core variables on the main factors which remain consistent throughout the program. Highest loadings on core vari— ables are in areas possessing more consensus regarding government's function (e.g., antitrust, commerce). Another merit, absenting the interpretative value, lies in the fact that the loadings confirm variables (IV-F— 20) and (IV-F—2l) as distinguishable categories. The former includes so many trust cases like the latter that the difference made for classificatory purposes might have been spurious. Plots Computer plottings were done on the loadings Of FACTOR C 56 and 21 variable sets. For FACTOR C, 56 157 variables, I clerically plotted, in nine graphs, the correlations among primary factors. Results underlined previous observation that the factors were not pure. They also indicated that drawing in Oblique angles proved only that a hypothesis of several distinct factors was untenable here, so few were the variable loadings on the factors themselves, even when these were rotated. In the computer plotting for 56 variables, only 50 coordi- nates were drawn, the remainder (interrelated subsets) appearing more than once.1 Superimposing penciled oblique angles over these clusters again indicated (as did the clerical version) that the clusters did not align along factor angles but distributed themselves about them. High correlation among these variables is obvious. Those vari- ables still unique2 appeared on the plot at a greater distance from the more interrelated ones. The 21 variable plotting had no coordinates occur— ring more than once. The cluster patterns are clear, more definite, and reflect the new structural economy. The more unique variables indicated by a graph of the two dimension solution are: (IV-J-2); (IV-C-9); (IV-E-ll); 1(I-c—6), (1-0-7), and (I—C-8); (I-C-2l) and (I-C-29); (1-0-9) and (I-c-18); (I—C-l9) and (I-C—15); (I-C-l7) and (I-C-l9). 2(1-J-3): (I-c-23); (I-E-27); (I-E-32); (I-E-38); (I-E-39); (I-E-92); (I—E-93); (I-F-96); (I-F-SB); (I-F-55). 158 (IV-F—20). (IV-E—6), (IV-E-8), (IV-E-lO), and (IV-E-l9) cluster loosely among themselves, a short distance from the other variables, which cluster tightly, in ball-like fashion. I focus on the first graph in preference to any Of the remaining eight, since it is my Judgment that the two factor solution generally is more meaningful. LAWS Hierarchical cluster analysis (Price, 1969) is a computer dependent program called LAWS, having a charac- teristic especially pertinent to our model. It combines levels of variables into successively more inclusive clusters until at the end, when the level of the average tau is reached, it has included every variable in the input matrix. Input data are the same as are used for both types Of factor analyses, with the exception that a square rather than triangular matrix is requisite. The successive clusters need not be symmetrical in forma- tion, though this is highly desirable if the data warrant. A tally of the most unique variables in LAWS for 37 variables (those correlating < .8) includes: (II-J—3); (II—E—l6); (II—E-l9); (II-E—22); (II-E-29); (II-E-25); (II-E-28); (II—F-39); (II-F-36). Had there been fewer, less highly correlated cluster elements, the program would have been more serviceable as a guide to data reduction. As it was, the results Of the 37 variable 159 set indicated that the input data would require refine- ment before LAWS could aid in the latter obJective. LAWS for 25 variables does have a symmetrical structure: a visibly hierarchical pattern, hence lends itself quite well to our model. FACTOR C, 21 variables indicates high correlations within a factor for variables which this LAWS also shows to be interrelated. This correspondence makes possible the subsequent reliance upon LAWS, 25 variables when specifying the components of psychological determinants Of decision making. The most unique variables are, in descending order: (III-J-2); (III-C—9); (III-E-l9); (III—E—l3); (III-F-29); (III-E-ll). The 21 variable LAWS does not recommend itself as much as did the 25, hence is subordinant to it in the following analysis. There is definite correspondence be— tween both, and both are utilized. The 21 variable pro— Itram lists, in descending order of uniqueness: (IV—J-2); (iV-C—9); (IV—E-ll); (IV—E—l9); (IV—F-l8); (IV—E-lO); (Iv—E—B). TABLE 9A.-—FACTOR A, 25 variable sets: varimax solution. 160 Two dimension Total Variance: .81 I .97 II .39 l. J State Jurisdiction .86 .30 J Federal Jurisdiction .25 .79 3. J Full Faith and Credit .59 .70 9. C Statutory Construction .72 .39 5. C Procedure .61 .71 6. C Due Process/ S. F. Procedure .59 .79 7. E Bankruptcy .90 .85 8. E Liability .60 .68 9. E Gold Clause .79 .92 10. E Insurance Contract .50 .69 11 E Noninsurance Contract .28 .89 12 E ICC .81 .38 13 E Federal Agency .36 .89 19. E Antitrust .85 .13 15. E Commerce .79 .53 16. E Intergov't. Tax Immunity .87 .37 17. E Fourteen Amendment .73 .99 18. E State Tax Policy .89 .91 19. E Police .70 .50 20. E Labor .80 .52 21. E Foreign Corporation .89 .38 22. F Gifts .68 .59 23 F Social Tax .87 .92 29 F Refund .18 .80 25 F Trusts .89 .35 TABLE 9B.-—FACTOR A, 21 variable sets: varimax solution. 161 Two dimension Total Variance: .82 .96 236 l. J State Jurisdiction .81 .36 2. J Federal Jurisdiction .21 .79 J Full Faith and Credit .57 .73 9. C Statutory Construction .76 .30 5. C Procedural and Due Process .53 .78 6. E Contracts .31 .89 7. E Intergov't. Tax Immunity .86 .38 8. E Liability .59 .70 9. E Commerce .76 .50 10. E Federal Agency .39 .86 11. E Antitrust .88 .09 12 E State Regulation .79 .57 13. E ICC .83 .36 19 E Bankruptcy .91 .89 15. E Gold Clause .78 .93 16. E Labor .81 .52 17. E State Tax .70 .58 18. F Gifts .72 .51 19. F Social Tax .85 .99 20. F Refund .25 .72 21 F Trusts .87 .37 TABLE 9B.-—FACTOR A, 21 variable sets: varimax solution. 161 Two dimension Total Variance: .82 .96 236 l. J State Jurisdiction .81 .36 2. J Federal Jurisdiction .21 .79 3. J Full Faith and Credit .57 .73 9. C Statutory Construction .76 .30 5. C Procedural and Due Process .53 .78 6. E Contracts .31 .89 7. E Intergov't. Tax Immunity .86 .38 8. E Liability .59 .70 9. E Commerce .76 .50 10. E Federal Agency .39 .86 11. E Antitrust .88 .09 12. E State Regulation .79 .57 13. E ICC .83 .36 19. E Bankruptcy .91 .89 15. E Gold Clause .78 .93 16. E Labor .81 .52 17. E State Tax .70 .58 18. F Gifts .72 .51 19. F Social Tax .85 .99 20. F Refund .25 .72 21 F Trusts .87 .37 TABLE 9C.—-FACTOR C, 21 variable sets: 162 solution. Two dimension I II 1. J State Jurisdiction .58 .32 2. J Federal Jurisdiction —.15 .83 3. J Full Faith and Credit .39 .19 9. C Statutory Construction .70 -.23 5. C Procedural and Due Process .30 .23 6. E Contracts .03 .91 7. E Intergov't. Tax Immunity .66 .21 8. E Liability .30 .97 9. E Commerce .59 .09 10. E Federal Agency .07 .90 11. E Antitrust .81 -.19 12. E State Regulation .56 .06 13. E ICC .65 .16 19. E Bankruptcy .15 .39 15. E Gold Clause .61 .07 16. E Labor .59 .18 17. E State Tax .52 .06 18. F Gifts .53 .29 19. F Social Tax .66 .19 20. F Refund .10 .16 21. F Trusts .66 .25 CHAPTER V DATA AND MODEL In the present chapter I attempt a number of things. The most important of these, however, is Joining empirical data Just analyzed to the model previously described. It is the goodness of fit between the two that imparts worth to scientific explanations at whatever level Of disci- plinary advance. Certainly the importance of the model cannot be overestimated. Its centrality becomes im— mediately apparent if, for example, the present analysis were to terminate with the last chapter. It is the model, or theoretical framework, that allows discrete findings to become an interpretable whole with explanatory power. The fitting process is hardly automatic: that the Judgmental is in large part involved is both necessary and Obvious. My approach to the model in general and the fit- ting process in particular is a rather pragmatic one Of maximum utility. In other words, the model is used for its explanatory power. Its success is gauged by the de- gree tO which it enables a plausible explanation Of deci- sion making on the Hughes Court, in terms Of the data prO— vided. 163 169 The process whereby data are selected from out of the total universe sampled and analyzed, then subsequently assigned places within the psychological hierarchy, is the area where the Judgmental comes most noticeably to the fore. In this regard, I can say only that here, as throughout, I will make the process as open as possible and Justify it as persuasively as I can. To any reader, however, I leave the Option of disagreement and at least the empirical foundations upon which to do so. Construction of the Hierarchy The Process Utilizing pertinent findings from all computer programs (discussed in the preceding chapter), I noted all core variables (i.e., those loading consistently on the same factor across various computer programs), mechanically assigning each to whichever of four possible factors it pertained. And while the evidence appeared to the contrary, all four factors were included initially. Though the listings of core variables derived from four different permutations of data, the variables chosen out Of all four sets differed very little among themselves, so the results were easily comparable, if not identical. During the listing, I also noted the number of times each variable recurred. 165 This simple procedure, in effect ascertaining the consensus of all programs, produced a fairly well— substantiated listing of core variables, corroborated by as many as five or six computer programs. The number of recurrences of the variable within any one factor merely increased the confidence in its positioning. The results of the procedure, in terms of the very few (i.e., one or two) core variables that could be assigned factor three or four, suggested deleting them completely. The presence of a core variable on either of these factors invariably meant a distending of the existing pattern. Certainly there were enough grounds heretofore for this deletion, but this is the ultimate point at which a decision had to be made. Consequently, the solution must be in terms of at most two, but possibly even one factor: a situa- tion earlier noted as being quite likely. The 21 variable sets were employed as guidelines regarding the number and kinds of variables to be dealt with and accounted for. These particular sets are chosen because they represent the ultimate reduction of all variables to their most elementary state. It is hardly appropriate to speak of "essences" in an empirical tract, but at least the 21 variables in totO contain the essen— tial elements dealt with by decision makers on the Hughes Court. They represent the end product of a refinement process and ostensibly the best permutation in that 165 This simple procedure, in effect ascertaining the consensus Of all programs, produced a fairly well— substantiated listing Of core variables, corroborated by as many as five or six computer programs. The number of recurrences of the variable within any one factor merely increased the confidence in its positioning. The results of the procedure, in terms Of the very few (i.e., one or two) core variables that could be assigned factor three or four, suggested deleting them completely. The presence of a core variable on either of these factors invariably meant a distending of the existing pattern. Certainly there were enough grounds heretofore for this deletion, but this is the ultimate point at which a decision had to be made. Consequently, the solution must be in terms of at most two, but possibly even one factor: a situa— tion earlier noted as being quite likely. The 21 variable sets were employed as guidelines regarding the number and kinds of variables to be dealt with and accounted for. These particular sets are chosen because they represent the ultimate reduction of all variables to their most elementary state. It is hardly appropriate to speak of "essences" in an empirical tract, but at least the 21 variables in toto contain the essen— tial elements dealt with by decision makers on the Hughes Court. They represent the end product of a refinement process and ostensibly the best permutation in that 166 sense. The 56 variable sets, for example, are too com— plex for the present purpose. In them the basic elements are compounded and somewhat obscured by appearing in many different forms: a prime fact making those sets ana— lytically undesirable. Core variables on the check lists accounted for 15 of the 21 variables on the legend for the 21 variable matrix. Six variables remained. In other words, these had not yet been assigned to either factor I or factor 11 because they had not been designated as core variables by the computer analyses. To assign these unplaced vari- ables, I examined the most likely programs, again to as- certain some consensus on the positioning: FACTORS A and C, 21 variables; FACTOR A, 25 variables; FACTOR A, 37 variables; FACTORS A AND C, 56 variables. In the factor analyses programs, I checked par— ticularly varimax two and three dimensional solutions for all variable sets, FACTOR A; and the comparable two and three dimensional solutions in FACTOR C. One variable (C-Procedural and Due Process) had no counterpart in FACTOR A, 37 variable sets, since there it was not com— bined in that way. In certain instances (concerning three variables out of a total 36) some extrapolation was called for. On what factor the variable loaded, tO- gether with the weight Of the loading, were noted. In the occurrence of conflicting positions among programs 166 sense. The 56 variable sets, for example, are too com- plex for the present purpose. In them the basic elements are compounded and somewhat obscured by appearing in many different forms: a prime fact making those sets ana— lytically undesirable. Core variables on the check lists accounted for 15 of the 21 variables on the legend for the 21 variable matrix. Six variables remained. In other words, these had not yet been assigned to either factor I or factor 11 because they had not been designated as core variables by the computer analyses. To assign these unplaced vari- ables, I examined the most likely programs, again to as- certain some consensus on the positioning: FACTORS A and C, 21 variables; FACTOR A, 25 variables; FACTOR A, 37 variables; FACTORS A AND C, 56 variables. In the factor analyses programs, I checked par- ticularly varimax two and three dimensional solutions for all variable sets, FACTOR A; and the comparable two and three dimensional solutions in FACTOR C. One variable (C-Procedural and Due Process) had no counterpart in FACTOR A, 37 variable sets, since there it was not com— bined in that way. In certain instances (concerning three variables out of a total 36) some extrapolation was called for. On what factor the variable loaded, to— gether with the weight Of the loading, were noted. In the occurrence of conflicting positions among programs 166 sense. The 56 variable sets, for example, are tOO com- plex for the present purpose. In them the basic elements are compounded and somewhat obscured by appearing in many different forms: a prime fact making those sets ana- lytically undesirable. Core variables on the check lists accounted for 15 of the 21 variables on the legend for the 21 variable matrix. Six variables remained. In other words, these had not yet been assigned to either factor I or factor II because they had not been designated as core variables by the computer analyses. To assign these unplaced vari- ables, I examined the most likely programs, again to as- certain some consensus on the positioning: FACTORS A and C, 21 variables; FACTOR A, 25 variables; FACTOR A, 37 variables; FACTORS A AND C, 56 variables. In the factor analyses programs, I checked par- ticularly varimax two and three dimensional solutions for all variable sets, FACTOR A; and the comparable two and three dimensional solutions in FACTOR C. One variable (C-Procedural and Due Process) had no counterpart in FACTOR A, 37 variable sets, since there it was not com- bined in that way. In certain instances (concerning three variables out of a total 36) some extrapolation was called for. On what factor the variable loaded, to- gether with the weight of the loading, were noted. In the occurrence of conflicting positions among programs 167 with regard to variable position on factors, the 21 and 25 variable solutions were given added weight in the determination. On these bases, and under the conditions noted, assignment of the heretofore unplaced factors was as follows: J—State on factor I E-Antitrust on factor I J-Full Faith and Credit E-ICC on factor I on factor Ii E—Gold Clause on factor I (L—erDOethlral.zlnd [hie Process on factor II The resultant two factors, together containing 21 vari- ables, are: Factor I (12 variables) Factor 11 (9 variables) C-Statutory Construction C-Procedural and Due Process J-State J-Federal E-State Tax minus Inter— J-Full Faith and Credit gov't. Immunity E-Federal Agency E-Labor E-Liability E-Commerce E-Contracts E—Tax Immunity E-Bankrupt E—Antitrust F—Gifts E- I CC F—Rei‘und E—State Regulation I'I—Gold Clause F-Social Tax F-Trusts These list, by set, the variables in each factor. The results are mechanically determined "set clusters" within factors. Set boundaries (J, C, E, and F), while essential to research and analysis, might not be so rigidly Ob— served in the decision making context, however neatly they may fall together. 167 with regard to variable position on factors, the 21 and 25 variable solutions were given added weight in the determination. On these bases, and under the conditions noted, assignment of the heretofore unplaced factors was as follows: J-State on factor I E—Antitrust on factor I J—Full Faith and Credit E—ICC on factor I on factor Ii E—Gold Clause on factor I C—Frocedural and Due Process on factor II The resultant two factors, together containing 21 vari- ables, are: Factor I (12 variables) Factor 11 (9 variables) C-Statutory Construction C-Procedural and Due Process J-State J-Federal E-State Tax minus Inter— J-Full Faith and Credit gov't. Immunity E—Federal Agency E-Labor E—Liability E—Commerce E—Contracts E—Tax Immunity E-Bankrupt E—Antitrust F—Gifts E— I CC F-Refund Isl-St ate Regulation I-Z—(iold Clause F—Social Tax F-Trusts These list, by set, the variables in each factor. The results are mechanically determined "set clusters" within factors. Set boundaries (J, C, E, and F), while essential to research and analysis, might not be so rigidly Ob— served in the decision making context, however neatly they may fall together. 168 To check the correspondence between these and actual, nonmechanical clusters, the computer plotting for FACTOR C, 21 variables, was reexamined. The plotted clusters are nonmechanical in that they occur without regard to separate factors hypothesized, and without re- gard to the set boundaries so arbitrary and heuristic at the same time. The resultant mix in positions, indicated by the plotting, strongly suggests that a one factor solution, rather than two, is closer to the reality of decision making on the Hughes Court. My own preference, because of its analytic rigor and structural definiteness, is the two dimension solution, with the second factor per— haps qualified as a specification of the first, but still somewhat independent of it. In light of the findings here, however, such a solution hardly appears defensible. This conclusion does not mean blind, exacting adherence to a computer solution. It does mean selection on the basis of a choice that is plausibly explained by, and more conformable to, the data themselves. In the plotting, graphs one (the two dimension FACTOR C, 21 variable solution for factors one and two) zind two (three dimension solution FACTOR C, 21 variable :zolution for factors one and two) were focused on. The clusters plotted, while not callous to the mechanical structure, hardly observed the category boundaries which guided research. Descriptively, this means: 168 To check the correspondence between these and actual, nonmechanical clusters, the computer plotting for FACTOR C, 21 variables, was reexamined. The plotted clusters are nonmechanical in that they occur without regard to separate factors hypothesized, and without re- gard to the set boundaries so arbitrary and heuristic at the same time. The resultant mix in positions, indicated by the plotting, strongly suggests that a one factor solution, rather than two, is closer to the reality of decision making on the Rughes Court. My own preference, because of its analytic rigor and structural definiteness, is the two dimension solution, with the second factor per— haps qualified as a specification of the first, but still somewhat independent of it. In light of the findings here, however, such a solution hardly appears defensible. This conclusion does not mean blind, exacting adherence to a computer solution. It does mean selection on the basis of a choice that is plausibly explained by, and more conformable to, the data themselves. In the plotting, graphs one (the two dimension FACTOR C, 21 variable solution for factors one and two) (And two (three dimension solution FACTOR C, 21 variable :zolution for factors one and two) were focused on. The clusters plotted, while not callous to the mechanical structure, hardly observed the category boundaries which guided research. Descriptively, this means: 169 1.00 . .80 . . - .60 .0 ..° . . .uo o 0: . 3; Q g:: P '20 so .0. 0 o I .. '4 .oo .- "; O 0 . t- .20 .- .AO .- .60 r.- .80 l I T r t I I t -1'00 -.80 -.60 —.AO - 20 .00 .20 MO .60 .80 Factor I: H axis Factor II: V axis Figure 5A. FACTOR C, 56 variable sets: solution. Two dimension 170 1.00 . y- .80 b .60 0 ° ° . - .uo O O . ° , ' - .20 0 ° 0 so ' ' .oo 0 -— .20 O '- .AO f- .60 f— .80 I t r r I 1 1 I _1000 -100 -080 -060 -0u0 -020 .00 020 ouo .60 .80 Factor I: H axis Factor II: V axis Figure SB. FACTOR C, 21 variable sets: Two dimension solution. 171 F-Antitrust; C-Statutory Construction; J- Federal are definitely unique and apart F—Contracts; F-Federal Agency; E—Bankrupt; F—hiability cluster together, with F-Refund loosely attaching itself thereto F-State Tax minus lntergov't. Immunity; R-State Regulation; E—Commerce; E-Gold Clause all cluster, as do E-Trusts; E-Intergovernmental Tax Immunity; E-ICC, F—Social Tax, with E—Labor loosely attached Both c and d can cluster together, in ball— like fashion, joined by J-State and, to a slight degree, F-Gifts C—Procedure and Due Process and J-Full Faith and Credit loosely cluster In sum, the initial processes in construction of the hierarchy have determined the variables to be taken into account; the manner of clusterings to be explained; and the nature of the solution. In accord with the model, each of the 21 variables represents an attitude system. Clusterings of the variables (attitude systems) may or may not, as the data warrant, represent values. The values themselves integrate, to greater or lesser de- gree, into a working value system for Court decision making during the 1931-1936 term. 172 Components of the Hierarchy Description of Variables as Attitude §ystems Although detailed description of these variables is given in the appendices on the Guttman scales, some brief characterization of each appears in order. Regarding the three most unique variables: J—Federal Cases: The uniqueness seems chiefly accounted for by the fact that Cardozo, Hughes, Van Devanter, and Butler have tie ranks (two pluses, two minuses for each). Also, of four cases herein, two are quite unusual (BO/SA and 77/11U8), the former in content and the latter in that the +/- direction was determined on a very minor basis. Also the cases (76/389 and 80/5“) responsible for the + vote of Van Devanter and Butler, enabling them to tie with the not quite so improbable combinations of Hughes and Cardozo, were unusual ones involving Court jurisdiction in patent and copyright cases. In any case, the variable represents an attitude to Judicial activism and jurisdictional assertiveness vis-a-vis lower federal courts. C—Statutory Construction: Roberts' surprisingly + direction, in six of seven cases, probably accounts in great part for the uniqueness. His + votes represent generally largess in interpretation, a pro C (individual) directionality. They are responsible for his tie rank 173 (number two) with Brandeis and Hughes. Only Stone and Cardozo are more liberal. Civil rights evidently is an exception to what the conventional literature styles as his lawyer's approach. The variable itself represents attitudes towards civil rights and the degree of sta- tutory regulation constitutionally permissible. F-Antitrust: McReynolds' abnormal rank, high on the liberal end of the spectrum, has much responsibility for uniqueness here. Beyond an unwonted liberalism in this category could lie his earlier experience as a vigorous trustbuster in the Progressive years, on account of which he was then characterized as liberal, even radi- cal. The fact that Stone, Hughes, and Sutherland each had three NPs (nonparticipations) out of five total further softens the ranks (e.g., a consequent Hughes and Sutherland tie). The variable represents an attitude toward the various elements of business monopoly, compe- tition (the other side of the coin), and federal sta- tutory regulation. Attempting to improve the fit of C—Statutory Con- struction, and E—Antitrust, tau coefficents were later clerically computed for both. In the case of the former, Roberts was omitted and the scale was then ranked against E-State Regulation (a core variable in factor I). The resulting tau, .88, indicated that Roberts' behavior was responsible for the uniqueness of this variable. For 173 (number two) with Brandeis and Hughes. Only Stone and Cardozo are more liberal. Civil rights evidently is an exception to what the conventional literature styles as his lawyer's approach. The variable itself represents attitudes towards civil rights and the degree of sta- tutory regulation constitutionally permissible. F-Antitrust: McReynolds' abnormal rank, high on the liberal end of the spectrum, has much responsibility for uniqueness here. Beyond an unwonted liberalism in this category could lie his earlier experience as a vigorous trustbuster in the Progressive years, on account of which he was then characterized as liberal, even radi— cal. The fact that Stone, Hughes, and Sutherland each had three NPs (nonparticipations) out of five total further softens the ranks (e.g., a consequent Hughes and Sutherland tie). The variable represents an attitude toward the various elements of business monopoly, compe- tition (the other side of the coin), and federal sta- tutory regulation. Attempting to improve the fit of C-Statutory Con- struction, and E-Antitrust, tau coefficents were later clerically computed for both. In the case of the former, Roberts was omitted and the scale was then ranked against E-State Regulation (a core variable in factor I). The resulting tau, .88, indicated that Roberts' behavior was responsible for the uniqueness of this variable. For 1715 Antitrust, McReynolds was omitted, and the scale then ranked against E—Commerce, another central variable in factor I. A tau of .75 was obtained. That it was no higher seems due in great part to the concomitant fact of Sutherland's abnormal rank in Antitrust, where he ties with Hughes. Regarding the cluster of E—Contracts; E—Federal Agency; E—Bankrupt; E—Liability and loosely, F—Refund: R-Contracts: Composed of both insurance and non— insurance varieties, the variable represents an attitude system which regards the extent of the binding nature of contracts, thus establishes the status of contractees. The kind of contractee, business or individual, makes a difference. E-Federal Agency: This variable is concerned basically with orders of federal regulatory agencies or bureaus directed to actors subject thereto. Usually, the actor is a business corporation, or an individual within an area of enterprise under regulation. The attitude system here represents an attitude to the regulatory powers congressionally delegated to specialized federal bodies, in economic areas. E-Bankrupt concerns the condition of bankruptcy as it pertains to private corporations and a municipal government. The attitude system, despite compounding 175 elements, seems basically the naked debtor/creditor argu- ment coming up for judgment. R-Liability concerns employer/ employee relations, where the latter's loss is connected with the work con- tract and mainly with regard to liability of vessels. The attitude system is focused on the worker and his rights: an underdog dimension seemingly. F-Refund, involving mainly the rights of an assessed taxpayer and his claims for that which govern- ment has [wrongfully] taken away, seems to represent an attitude system highly senstive to and geared toward the economic rights of the individual and the maintenance of security in possession. It is watchful, too, of the sc0pe of the sovereignty expressed in the tax power. Regarding the cluster of E-State Tax minus Inter- governmental Immunity; E-State Regulation; E— Commerce Regulation; R-Cold Clause: E-State Tax may basically involve state taxes on various kinds of business (chain stores, foreign corpor- ations) and personal property, as well as statutory classifications for purposes of taxation. Probably the attitude system represents the constitutionally available rights of private enterprise (especially under XIV amend- ment, equal protection) within the area of public sovereignty. It is an attitude towards the allowable 176 bounds to which state legislatures can stretch the tax power. E-State Regulation in general concerns state legis- lative regulation of private enterprise, in effect, operationalizing the police power by commission and/or statutes. The attitude system is founded on the regulator/regulated relationships: state legislatures as the former; private enterprise as the latter. E-Commerce Regulation involves predominantly New Deal legislation and its utilization of the federal com- merce power. The attitude system would necessarily be directed towards legislative innovation, in terms of federal regulation of heretofore unregulated areas. The consequences of government in action, in terms of power employed, are the dominant foci here. E—Gold Clause primarily centers on the power of Congress to override contractual (public or private) obligations bound up with the monetary system. The attitude system activated seems dominantly the sanctity of contract as either absolute or relative. Regarding the cluster of F-Trusts, E-Intergovern- mental Tax Immunity, E—ICC, F-Social Tax, and marginally, E-Labor: F-Trusts generally involves cases testing the various ways whereby prOperty in trust is rendered federally taxable. Regardless of the legal labyrinths 177 involved in these cases, the attitude system, in a most elementary manner, seems to be right to property, to- gether with untrammeled right of its ultimate disposal. E-Intergovernmental Tax Immuntiy concerns the state tax power over an object (corporations, lands) having especial status because of extra-state connections. The attitude system concerns the state tax power where its Operation intrudes into an area of plural sovereignties. E-ICC concerns private business (railroads, transit companies, stockyards, carriers generally) in interstate transport or transaction. The attitude system is again set in the regulators (i.e., ICC) and the regulated (the carriers) context, and so activates response toward both. F-Social Tax deals mainly with federal taxes based on policy orientations that are decidedly nonfiscal. In this category, the attitude system focuses on judgment as to the legitimacy of either policy per se or of govern- ment's mode of implementation. EQLabor involves two state minimum wage laws, and one state labor code. All instances activate an attitude system which regards the laborer, either as underdog in a free enterprise system, or a party whose legal status ijs'based on his right to work and freedom of contract. Regarding J-State and F-Gifts, which tend to loosely attach themselves to the combination of the two ;preceding sets: 178 J—State: The variable content is variegated. Apparently the common tie is judicial activism in the sense of broadly conceiving the scope of federal juris— diction. The attitude system involves this considera— tion (judicial activism) specified as the exercise of an oversight function with regard to the rulings of state courts. F-Gifts largely deals with operation of the federal tax power via revenue acts on gifts by inheri- tance or succession. Seemingly, the nature of property transferral (gift as opposed to trust) activates an attitude which makes a difference in perception of federal tax power, resulting in a more positive orienta- tion to it. Regarding C—Procedural and Due Process and J—Full Faith and Credit: C-Procedural and Due Process in large part involves the procedural guarantees of the accused, particularly in federal criminal trials and in state courts. The nature of most cases involving the Prohibition Act, for example, occasions a duality in the attitude system: regard for procedure tends to go hand in hand with the attitude toward legislation under which conviction occurred. J—Full Faith and Credit deals with interstate rela- tions, specifically, state courts honoring rulings of other state courts which in some manner affect or relate 179 to them. The attitude system seems again to concern the Court as overseer of interstate relations in judicial forums throughout the federal system. Integration of Variables At this juncture, more precise specification of the psychological proximity of these attitude systems is re- quired. For this reason, the LAWS programs for 25 and 21 variables were employed interchangeably. This was neces- sary, given the very good structure of the 25 variable program and the fact that there were some minor differ— ences in the content of each variable set. By weaving back and forth, as it were, between these sets and the raw data from which they derive, an anatomy for the ex- planation was constructed. To repeat: in general, hierarchical cluster analy- sis indicates what variables in any given set cluster to— gether (possible clusters containing from two up to, and including, N number of variables in the entire set), and at what level of correlation (i.e., from a theoretical 1.00 down to the lowest tau of any one set of variables). For’example, in the LAWS for 25 variables, the highest correlation starts at .969 (between J-Full Faith and <1redit, and C-Procedural). The various clusterings are therllisted in descending order of correlation, and end at as .713 correlation which includes all 25 variables. 180 The original NPAR for 25 variables had yielded an average tau of .713, and so the relationship goes. LAWS for 21 variables had started with a .965 correlation (E-Commerce, and E-Labor), and continued, in descending order of cor- relations, until the terminal point, a correlation in— cluding all 21 variables. The correlation among these 21 is .716 (again, the average tau indicated by NPAR for 21 variables). Essentially, I worked back and forth between these two programs (i.e., LAWS for 21 and for 25 variables). Where both programs agreed, selection of correlated vari- ables was mechanical. Where they did not, the judgmental and extrapolative processes again came into play. Thus the following indicates, in short hand fashion, these pro- cesses and the correlated variables ultimately selected. The correlated variables themselves are given, the vari- able sets from which this correlation derives (21 and/or 25 sets), and the level of correlation. The order of treatment is guided, not by the level of correlation, but by the clusters of variables (attitude systems) ex- plained in the section immediately preceding. a. J-Full Faith and Credit and C-Procedure and Due Process 21 variable (program) - .926 (correlation) E-Intergovernmental Tax Immunity; F-Social Tax; E-Trusts; J-State 21 variable — .916 E-ICC; E-Commerce; E-Labor 21 variable - .91A 181 F-Social tax; E-State Regulation 21 vari- able - .91u These elements intercorrelated together in the 21 variable set at .827 The following clusters, less definite because deriving variously from two programs and much of the judgmental and extrapolative processes, are: b. F-Trusts; E-Antitrust 21 and 25 variable — .800 hence relate E—Antitrust to section a E-Gold Clause; F—Trusts 21 variable - .872 hence relate E-Gold Clause to section a C-Statutory Construction; E-Gold Clause 21 variable - .782 hence relate C-Statutory Construction to section a c. E—Federal Agency; E-Contracts 21 variable - .896 F-Refund; E-Noninsurance (translate Contracts) 25 variable - .828 E-Federal Agency; E-Bankrupt 25 variable - .825 J-Federal; E-Federal Agency 21 variable - .76“ J-Federal; E—Insurance Contracts (translate Contracts) 25 variable - .770 F-Refund; E-Bankrupt 21 variable - .759 E-Contracts; E-Liability; E-Federal Agency; (also C-Procedural) 21 variable - .82“ E—Liability; F-Gifts 21 variable - .862 hence could plausibly build a composite cluster of the foregoing relationships by extrapolation (i.e., E-Federal Agency; E-Contracts; E- Bankrupt; E-Liability; F-Refund, with F-Gifts and J-Federal marginally included Hierarchy Detailed The major findings of this analysis based on deci- sional output for the 1931-1936 terms thus point to the conclusion that decision making on the Hughes Court was dominated by a single factor made of three components. 182 The factor has been mentioned, and used throughout, as an attitude toward government, toward the exercise of govern- mental power. For the purposes of this conclusion, how- ever, I have here labeled it "operational government." This is due to the fact that it basically concerns the Court's attitude towards a particular, coexisting govern- mental apparatus, as well as Court perception as to how that government was executing its functional imperatives. Government here embraces more than Franklin Roosevelt's administration. It involves, as do the case-stimuli, the total polity or political society. In essence, I conclude that the value system of the Court as a whole is, in terms of psychological determi— nants, a simple one factor structure: Operational govern- ment. The extremely intercorrelated nature of the data as well as the scalability of mass, gross categories of cases have indicated as much throughout. Though striving for simplicity, one tries to avoid the appearance of being overly simplistic. At the risk of the latter, however, the conclusion stands. Empirically it is warranted. His- torically it seems not at all improbable. The Hughes Court sat during an intensively transi- tional period. The men on it were born in the Civil War or Reconstruction period, and though the 1930's were only thirty years up from the turn of the century, they were light years away in terms of the governmental function. 183 In other words, both concept and perception re- garding the role of government in a democratic society were revolutionized. ‘Government was no longer a negative force, policing to maintain public order and intervening only when physical disruption of the social organization threatened. Society had been a self—contained mechanism regulated by natural forces. Government had been the policeman on the sidelines, looking on to see that society kept on working things out, propelled by its own inner dynamism. Depression, the failure of Hoover's policies, and Franklin Roosevelt were prominent in radically chang- ing this state of affairs. Enter then the social welfare function and positive governmental action. This distance of light years is true not only of government's function in execution but also of that func— tion as perceived by the electorate, in particular the peOple who voted in 1932 and 1936. It was a time when government was reaching into all aspects of its citizens' lives, a kind of democratic encapsulation process. As the cases themselves vividly demonstrate, hardly any legal issue but what had an aspect vis—a-vis governmental power. The prohibition cases are a natural example. I further conclude that two dominant and one minor values compound the factor. The one value concerns Opera- tional government as it exists/Operates in public areas. This refers to areas wherein the presence of governmental 184 authority, representing the general public, is accorded a legitimacy that may be denied, upon specification, to the actual exercise of its power. In sum, it is the public welfare value. It is a value that assumes govern- ment state or federal does have a care for the social entity, and that perfection of organized society is in- contestably a desirable, worthy goal. Just what this "care" amounts to, in terms of implementation, is of course another matter and the argument's core. Although J-Full Faith and Credit and C-Procedure and Due Process are, on the basis of LAWS 21 and 25 vari- able sets, part of the public welfare value, they cor- relate so highly together, and are of sufficiently dif- ferent matter from the rest as to be distinguished. There is enough of court/legal procedure in both to make probable a very judicial kind of value evidencing concern on the part of the Supreme Court over the conduct of busi- ness by lower courts. In both categories, the Court is essentially examining lower court output for judicial errors. Perhaps the label "judicial process value," with its implied pride of court, is not too misleading. The other dominant value is generally along an individualistic/privatistic dimension, despite the impli- cations of such category titles as E-Federal Agency and J—Federal. In the area where this value is operative, there is no fundamental consensus regarding even the 185 Value System: ‘ Operat nal Gov nment Publicw fe \at Rights 1’! Values: . ‘- 101 1 Process Attitude Systems: 1 2 3 A 5 F 18 Legend: J Scale E Scale F Scale 1 State Jurisdiction 6 Contracts 18 Gifts 2 Federal Jurisdiction 7 .Intergov. Tax Immunity 19 Social Tax 3 Full Faith & Credit 8 Liability 2O Refund 9 Commerce 21 Trusts C Scale 10 Federal Agency 11 Antitrust A Statutory Construction 12 State Regulation 5 Procedural & Due Process 13 ICC 1h Bankruptcy 15 Gold Clause 16 Labor 17 State Tax Figure 5C. Representation of the hierarchy. 186 presence of governmental authority. Government may Operate as a kind of deus ex machina here, but the tenor of most cases constituting these categories underlines the saliency of individual to individual relationships, generally in an economic context. This value area focuses on the issue of the primacy of the individual in getting, keeping, losing, or just dealing. The rights involved, and what government's position regarding them, are then the points of adjudication. For these reasons, this value seems best labeled "private rights." These, then, are my conclusions on the working value system of the Court. It is basically a single value system, which I have termed operational government. The value system itself is composed of two dominant values, and one minor one. The dominant values are public wel- fare and private rights. The minor one, touching the Court's awareness of the adjudicatory role of courts in the federal system, is the judicial process value. The most basic components are 21 attitude systems mentioned before. CHAPTER VI THE JUS”[CES ON THE COURT The chapter is devoted to the individual justices, given the tendency for this type of analysis, focusing on the Court as a whole, and dealing in data aggregates, to minimize the individuality of Court members. This is true although the ranks themselves are intensely indi- vidual, both in terms of focus and of informational yield. Hence in concluding, it seems fitting to make some statements about the justices, in terms of findings herein. It also seems profitable to make some comparison of these findings with the conventional literature. These, in brief, are the purposes the concluding chapter sets out to accomplish. General Orientation The perennial question about justices inevitably turns on their relative positions along a liberal- conservative dimension. My findings in this regard are indicated in the Average Ranks of Table 6A, based on the 21 variable sets. The justices' ranks across each vari- able (scale) are listed by set (J, C, E, and F). For each set, the average rank of each justice is computed. 187 (HIAPUWHQ VI THE JUS“[CHS ON THE COURT The chapter is devoted to the individual justices, given the tendency for this type of analysis, focusing on the Court as a whole, and dealing in data aggregates, to minimize the individuality of Court members. This is true although the ranks themselves are intensely indi- vidual, both in terms of focus and of informational yield. Hence in concluding, it seems fitting to make some statements about the justices, in terms of findings herein. It also seems profitable to make some comparison of these findings with the conventional literature. These, in brief, are the purposes the concluding chapter sets out to accomplish. General Orientation The perennial question about justices inevitably turns on their relative positions along a liberal- conservative dimension. My findings in this regard are indicated in the Average Ranks of Table 6A, based on the 21 variable sets. The justices' ranks across each vari- able (scale) are listed by set (J, C, E, and F). For each set, the average rank of each justice is computed. 187 mmmzmtx s m.» s m m m m.s m.w m m mo: m m; m m s s m m. a m m m m a : m.w : : m.= m a m H H m H m m.H m.m m.H m.H H um m m m m m m.H H m m m mu m m H m m m m.m m.H m.H m cm H m o s m o o m a maaom m .mHmom o mmosom mxcms mwmpm> w m 5 mo: 0.: o m m m.: s m m m.H m.H m »m m.H m.H m mo m.m m a cm 0 m < mq.m m m.: m.~ Qcm> m m m m mo: m.m @ m.e s m m.: m.m m.: m m >.H H m m um m.m m m.= m mo m.H m.m H H pm Q o m < mq Hm sons mxcws mmmsm>¢|< mmHmOm mum mmHmom Mum mmHMom Duo mmHmom huh spammed 0.5 0.0 0.5 0.0 5.0 :m H.5 0.5 0.5 0.5 0.0 :m 0.0 0.0 0.0 0.0 5.0 Qcm> 0.5 0.0 0.5 0 0 mo: 0.0 0.0 2.0 0.: 0.0 m m.m 0.m m.: 0.: m.: x 5.H 0.H 0.H 0.H 5.H m m.m :.m m.m 0.H m.m mo 0d o.m 0.m 0.0 0.H cm < a m o w mmuqmmba 44mmzmo mHmom m wmosom exams ommco> 0.0 0.5 0.0 0.0 0 mo: 0.0 a 0 z 0 m 0.m 0 0.0 0 q x 0.H 0.H 0.H m 0.H m. :.m m 0.H m m mo o.m 0.H m m 0.H mm m a o m < uqqom a omsmHo CHOCIw hocmm< Hmsmommtm mHmo m wmosom mopozsxcxmnH moLmEEoola mxcmx mwmtm><-z ooHuz ssHHHannuo xme mumbmnq :oHLmHsmo; oumuwlo muchseH xme .p.>omsmucHnm sooqux unsprpc m 0.5 0.5 0.5 5 m 0 m 0.5 0.0 m 0 mo: 0 0 0.m 0.5 0 0 a 5 0 0 a m m a a 0.0 m z a 0.0 a z 0.: 0 z : 0.H m H H m H m 0.H 0.m 0.H 0.H H pm 0.H m 0.m m m m m 0.H H m m m mu m m 0.m m H m m m 0.m 0.H 0.H m cm H x h H z o m m Q o m < mq mo: mm pm LflLfl (“Hr—1:300 m5oo MHHJQOLONCD :NNLDNNWQCM (I moooomo pm 0 CD <1: mq Hm Eopu meMH mwmpm> 0.5 0.0 0.5 w a mo: 0.0 0.0 3.0 0.: 0.0 m m.m 0.m m.: 0.: m.: : 5.H 0.H 0.H 0.H 5.H pm m.m :.m m.m 0.H m.m mo m.m o.m 0.m 0.m 0.H pm < m m o n mnc< H 0.0 0.5 0.0 0.0 0 mo: 0.0 a a s 0 m 0.m 0 0.0 0 z : 0.H 0.H 0.H m 0.H m :.m m 0.H m m m. o.m 0.H m m 0.H mm m a o m < chow a vwsmHo UHOCIw mocmm< Hmsmpmmlm mHmom m whosom mouozcxcmmn4 ooLmEEoouQ axes: mwmbm>omsmH:H|m Loomqux unzspHuc 190 Finally, each justice is assigned an average rank across all sets (J, C, E, and F). This last average represents, in effect, the average of the average ranks of each jus- tice for J, C, E, and F combined. There are some points to be noted. In all sets, Stone is the most liberal member of the Court. He ties with Cardozo in C and outranks Brandeis in J by a very small margin, but the fact remains that in no ranking is he less than first. Most telling is his average across all scales (1.7), which puts him well ahead of Cardozo, his nearest competitor, with 2.8. Although in the J and F sets Brandeis ranks ahead of Cardozo, Cardozo indisputably holds second rank in view of the over-all rankings. In fact, though often the triumvirate of Brandeis, Cardozo and Stone is referred to (and admittedly, not without justification), Cardozo and Stone are much closer to each other in C than Brandeis is to either. Indeed, Brandeis seems not so liberal as conventional analysis reports. If Brandeis were positioned on a uni— dimensional ideological continuum, he would have Stone on his left, Hughes on his right, and himself about equi- distant from either. His ranks in C and E are particu- larly instructive. Speaking of the Hughes-Roberts duality, Hughes in all cases save the C scale is the more liberal of the two. Roberts' surprisingly pro C directionality has been 190 Finally, each justice is assigned an average rank across all sets (J, C, E, and F). This last average represents, in effect, the average of the average ranks of each jus- tice for J, C, E, and F combined. There are some points to be noted. In all sets, Stone is the most liberal member of the Court. He ties with Cardozo in C and outranks Brandeis in J by a very small margin, but the fact remains that in no ranking is he less than first. Most telling is his average across all scales (1.7), which puts him well ahead of Cardozo, his nearest competitor, with 2.8. Although in the J and F sets Brandeis ranks ahead of Cardozo, Cardozo indisputably holds second rank in View of the over-all rankings. In fact, though often the triumvirate of Brandeis, Cardozo and Stone is referred to (and admittedly, not without justification), Cardozo and Stone are much closer to each other in C than Brandeis is to either. Indeed, Brandeis seems not so liberal as conventional analysis reports. If Brandeis were positioned on a uni- dimensional ideological continuum, he would have Stone on his left, Hughes on his right, and himself about equi- distant from either. His ranks in C and E are particu- larly instructive. Speaking of the Hughes—Roberts duality, Hughes in all cases save the C scale is the more liberal of the two. Roberts' surprisingly pro C directionality has been 191 previously noted. This area of his (Roberts') interpre- tative largess in actual decision making behavior is uniformly slighted by the literature. Roberts' extra- court activities with the Boy Scouts, and his dealings with Girard College are duly noted, but a general silence prevails regarding his judicial liberality in this central area of attitudinally motivated behavior. In spite of this, however, Hughes is incontestably the more liberal, as the span from 3.9 (Hughes) to 5.3 (Roberts)in average ranks across all scales indicates. The ranks of the so—called four horsemen (i.e., McReynolds, Van Devanter, Sutherland and Butler) are not as closed as the title implies. McReynolds, Sutherland and Butler perhaps may be the real impenetrables. Of their stalwart conservatism there is no doubt. But Van Devanter is different, though again his differences go by the board in most conventional assessments. In these data, he predictably comes after Roberts, therefore tends to be sixth in line. This signifies for Van Devanter a far greater degree of liberalism, in terms of the ranks and the psychological distances they represent, than is implied by the mechanical distance between six and seven (i.e., Van Devanter and Sutherland). In terms of average ranks across all scales, and on the J and C sets, Van Devanter is closer to Roberts (on his left) than to Sutherland (on his right). 192 Of the three remaining, in ascending order of con- servatism, are Sutherland, Butler, and McReynolds, though the .1 difference between Butler and McReynolds may, to most readers, be too insignificant to constitute a point of differentiation. Butler's few tender points, those capable of some response in the liberal direction, appear in the federal jurisdictional and federal agency scales (perhaps explicable as a kudos from a man who appreciated technical expertise). In this same vein, McReynolds' two soft points are antitrust in the E set (perhaps the trustbuster background surfacing); and what appears to be inexplicably maverick behavior in the refund cases of the F set, where he ties with Hughes in upholding government right to tax and to retain the revenue derived. Individual Members Louis Dembitz Brandeis occasioned a 12“ day period of consideration by the U. S. Senate before appointment to the Court (Cole, 193“; Mason, Brandeis, 1956). Taft and seven former ABA presidents headed the opposition but in the end, partisan regularity on the Judiciary Committee (10 Democrats--8 Republicans) prevailed. The literature makes much of the Brandeis style of liberalsim: flaming, crusading, didactic (Konefsky, 1956; Richberg, pp. 129- 138 and Lerner, pp. 29-h5, in Frankfurter, 1932). In terms of role perception, however, the justice was a 193 .mmmo mco chuH3 mmocmHH:o:oo mHaHpHSE mo poem me» an UmumHmcH .me mH meson me on» How mcoHcho Hmzmcmmme mHnHmmoa Hanoe mum mopsmHm oEow .Ho>mzo: HoocmHHSUCOO oumHMQom .ucmmmHe 0Hom .pcmmmHe :qu mocmHHSocoo ..o.HV monk» Hocpo HHm Ho .mpHHmeecoc u 22*: szz mocmHH:ocoo .zuHHOnmE u E: Hmm.v H50.V HHm.v H05.v HmH.0 HH0.0 Hmm.v H00.v HmH.v H5m.v HHH.V Hmm.v H30.0 H0:.v H5s.v H00.0 Hms.v H50.0 m0 0mH 0m m:H 0m m0H H0 5mH 0m 00H Hm m0H 00 m0 H0 H0 mm 00H Hmpoe om 0H 0H Hm NH mm mm :H 2 mm m :m 0 Hm HH 0m 5 0m 000H 0 0m 0 mm m mm 0 0m 0 0m 5 5m 0m 0 0m 0 0m oH 0mmH m Hm 5 mm 5 mm 5 mm a 0m 2 0m mm m 0H 3H 0H 0H ammH 0 0H 0 mm m 0m 0 om 0 mm 2 mm :H :H HH 5H OH 0H mmmH HH om 0 0m 3 0m HH om m. 0m 2 0m 3H 5H mH 0H OH mm mmmH 0 mm 3 mm 5 mm 5 mm m mm 0 5m 0H MH 3 m 0H 0H HmmH E: z 22 z 22 z 22 z :2 z 22 z :2 z :2 z *szz *2 user 3m 5m o cm> mo: m :mu pm so Hm .AmEHmp 0mmH|HmmH mommo HmSmcmmmev momma soHsHeo--.m0 mqmee 1&93 .owMo mco :Hszz mmocmLHSoCOQ mHQHpHSE mo comm me» an pmpmHmcH mum wmsstw mEom .po>mzom .mmH mH mEpmp me on» Low mcoHcHQo HmSmcomme mHnHmmoo Hmpoe HousmHHSocoo mumpmdmm .pcomee oHom .pcmmep cpHs mocmsszocoo ..m.Hv modzp Hmnpo HHm no aszLmescoc u 22*: nqu mocmHHSocoo .mpHHonmE u z: Hmm; H50; 3m; 35.0 3H; 30.0 Sm; $0.0 SH; H50; HHH; 200.0 20.0 H03; H52; H00; Ame; H50; m0 0mH 0m mzH 0m m0H H0 5mH 0m 00H Hm m0H 00 mm H0 H0 mm 00H Hmuoe om 0H 0H Hm mH mm mm :H 2 mm m :m 0 Hm HH 0m 5 0m 000H 0 0m 0 mm m mm 0 0m 0 0m 5 5m 0m 0 0m 0 0m OH 000H 0 Hm 5 mm 5 mm 5 mm a 0m 3 0m mm m 0H 3H, 0H 0H :00H 0 0H 0 mm m 0m 0 om 0 mm 3 mm :H :H HH 5H OH 0H mmmH HH em 0 0m 2 0m HH om H. mm 2 0m 2H 5H 0H 0H 0H mm mmaH 0 mm 3 mm 5 mm 5 mm m mm 0 5m 0H mH : m 0H 0H HmmH E: z 22 z 22 z 22 z :2 z 22 z :2 z 52 : **22 *2 seem 5m 3m a cm> :02 m :00 pm mo Hm .AmEsmu 0mmHnHmmH mmmmo szmcmmmev mega» :oHcHQOIu.m0 mqmo30: AmoCmHH30coo spasmomm .pcmmme oHom .pcwmme csz mocosssocoO ..m.Hv mega» Hmcpo HHm Ho .szHofimsco: u 22*: :qu mocmHHSocoo .mpHsoOmE u 2* Hmm.v H50.v HHN.V H05.v HmH.v HH0.0 Hmm.0 H00.V HmH.v H50.v HHH.V Hmm.v H30.v H0s.v H5:.O Hm0.0 Hms.v H50.0 m0 0mH mm mzH 0m m0H H0 5mH 0m 00H Hm 00H 00 m0 H0 H0 m0 OOH Hmpoe Om 0H 0H Hm NH mm mw :H 2 mm m :m 0 Hm HH 0m 5 0m 0mmH 0 0m 0 mm m mm 0 mm 0 0m 5 5m 0m 0 0m 0 0m OH 0mmH m Hm 5 mm 5 mm 5 mm a 0m 2 0m mm m 0H 2H 0H 0H :00H 0 0H 0 mm m 0m 0 ON 0 mm 2 mm 3H 3H HH 5H OH OH mmmH HH em 0 0m x 0m HH om m. mm a 0m HH 5H mH OH OH mm mmmH 0 mm 2 mm 5 mm 5 mm 0 0m O 5m 0H mH : 0 0H 0H HmmH 22 E 22 E 22 z 22 E 22 z :2 E 22 z :2 z **22 *2 use» 5m :0 O cm> mu: x 2mm um so am .AmEHmu 0mmHIHmmH memes HmSmcmmmev momma COHCHQOII.m0 mqmqa 3£93 .mmwo mco chqu mmocosssocoo deHpHSE Ho posh one He OmumHucH .me mH meson me one son wcoHcHdo Hmsmcomme chHOOOQ proe mam mopstu oEom .po>wzom Hmocmphsosoo mpmsmamm .ucommHo oHow .ucmmme csz mocmpcsocoo ..m.Hv momma Honuo HHm Ho .OHHHOOOECQC u 22*: suHa mocopnzocoo .HuHHoOmE u Ea Hmm; H50; Hm; 85.0 3H; HHO; Hmm; $0.0 HOH; H50; AH; 30; 30.0 H03; H52; H00; Ame; H50; m0 0mH mm mzH 0m m0H H0 5mH 0m 00H Hm 00H 00 m0 HO HO NO OOH kuoe Om 0H 0H Hm NH mm mm :H H mm m :m 0 Hm HH 0m 5 ON 000H 0 ON 0 OO O NO 0 ON 0 ON 5 5m 0m O 0m O 0m OH 000H 0 Hm 5 mm 5 mm 5 mm a 0m 2 0m mm 0 0H 2H 0H 0H ammH O OH 0 mm m 0m O ON 0 mm H mm OH OH HH 5H OH OH mmOH HH OO 0 0m a 0m HH OO O. ON a 0m OH 5H OH OH OH mm OOOH O mm 2 mm 5 mm 5 mm m Om O 5m 0H mH : 0 0H 0H HmmH 52 2 £2 z :2 E :2 E :2 E 22 E :2 z :2 z **22 *2 use» 3m :0 O cm> x02 m :mo am so Hm .AmEHou 0mmH|HmmH mmmmo Hmzmcommev momma coHCHQOII.m0 mqm<5 1&93 .mwmo oco cngHz moocmhpsocOO deHuHSE Ho pomm on» an empmecH .me mH mEHmp me on» How mcoHcHao Hmsmcmmme mHnHmmom Hapoe mam mosszm mEom .pm>ozom HmocmHH30coo mumpmdmm .pcmmee oHom .ucmmmHU anx oocmspzocoo ..m.HV mega» pmcpo HHm Ho .HuHHoOOEco: u 22** anz mocmHH30c00 .mpHHoOmE u 2* Hmm.v H50.V HHm.O HO5.0 HOH.O HH0.0 Hmm.v HO0.0 HOH.V H50.0 HHH.O HO0.0 HO0.0 H00.0 H50.0 AO0.0 HO0.0 H50.0 m0 0mH 0m mOH 0m m0H H0 5mH 0m 00H Hm m0H 00 mm HO HO m0 OOH Hapoe om 0H 0H Hm mH mm mm OH O mm m Om 0 Hm HH 0m 5 mm 0mmH 0 mm 0 mm m mm 0 0m 0 0m 5 5m 0m m 0m 0 0m OH 000H 0 Hm 5 mm 5 mm 5 Nm O 0m O 0m mm m 0H OH 0H 0H OmmH O OH 0 mm m 0m O OO 0 mm O OO OH OH HH 5H OH OH OOOH HH OO 0 0m O OO HH OO O, OO O OO OH 5H OH OH OH NO OOOH 0 mm O mm 5 mm 5 mm m mm O 5m 0H 0H s 0 0H 0H HmmH :2 z 22 z 22 z 22 E 22 E 22 E :2 z :2 z **22 *2 Hmow :m 3m o cm> mo: x $00 pm mo Hm .AmEHmp 0mmHIHmmH mmmmo Hm3mcmmmHUV momma COHCHQOII.m0 mqm<9 199 TABLE 6C.--Authorship tally of dissensual opinions 193l- 1936 terms. Authorship or stages: Tessa. sass Opinions 5 P Br 12 5 18 Ca 22 25 M7 St 17 29 A6 CEH 21 5 26 R 35 9 an MCR ll 19 30 VanD 2 2 N Su 25 9 3“ Bw 1M 13 27 Legend: Only comparatively full, written opinions, spe- cifically authored by one justice, are included herein. Thus all jointly authored works and single sentence/word expressions are omitted. To qualify as a "full"opinion, some elaboration had to be given for a particular position in the instant case. Also, "dissents" here represent a rather gross category, into which are lumped separate ' opinions/ concurrences, or generally, any verbalization distinct from the majority opinion. 19A TABLE 6C.--Authorship tally Of dissensual opinions 1931- 1936 terms. Justice figtggggfiigy Authorship Total No. Authored Opinions or Dissents Opinions 1931-36 Br 12 6 18 Ca 22 25 “7 St 17 29 us GEN 21 5 26 R 35 9 an MCR 11 19 30 VanD 2 2 N Su 25 9 3h Bw la 13 27 Legend: Only comparatively full, written Opinions, spe- cifically authored by one justice, are included herein. Thus all jointly authored works and single sentence/word expressions are omitted. To qualify as a "full"opinion, some elaboration had to be given for a particular position in the instant case. Also, "dissents" here represent a rather gross category, into which are lumped separate ' Opinions/ concurrences, or generally, any verbalization distinct from the majority Opinion. 195 TABLE 6D.--Comparison of number of dissensual case opinions with total number of case opinions 1931-1936.1 Total Number of Total Number of Justice Authored Opinions in Opinions Delivered Dissensual Cases, 1931-1936 1931-19362 Br 18 90 Ca U7 150 St U6 156 GEN 26 140 R an 139 MCR 30 108 VanD u 26 Su 3U 112 Bu 27 117 1Figures in column 1 are from author’s data; in column 2, from 51, Harvard Law Review (1937-1938). 2Includes the justice's opinions of the Court, concurring and dissenting Opinions combined. 195 TABLE 6D.--Comparison of number of dissensual case Opinions with total number of case opinions 1931-1936.l Total Number of Total Number of Justice Authored Opinions in Opinions Delivered Dissensual Cases, 1931-1936 1931-19362 Br 18 90 Ca “7 150 St “6 156 CEH 26 140 R AH 139 MCR 30 108 VanD u 26 Su 3“ 112 Bu 27 117 1Figures in column 1 are from author's data; in column 2, from 51, Harvard Law Review (1937-1938). 2Includes the justice's opinions of the Court, concurring and dissenting Opinions combined. 196 man after Felix Frankfurter's heart (Frankfurther, 1931- 1932, pp. 33-105). Brandeis worked within the traditional framework. He believed in the lawyer-statesman and judicial re- straint. Despite a keen social conscience, he had a bias against bigness preventing him from coming to terms with other than small, individual-encompassed units. This kept him less than modern, and made him something of a transitional liberal on the middle ground between the old Manchester variety and that of the post New Deal. In terms of orientation to operational government, Brandeis was flexible. His anti bigness and his commit— ment to smaller units of authority did not preclude prag- matic endorsement of necessary government power and use of the constitutional armature to support its exercise. Public welfare in terms of socio-economic legislation, and employment of the tax or regulatory power on part of either federal or state governments, held unambiguous priority over private rights. To the Court's role as keeper of the federal balance, he assigned positive meaning; more often than not, the Court could consider and determine the controversy. 197 Table phi shows brandeis concurring with the major- ity approximately 57% of the time. He was a dissenter (“3% of the time) but usually in concurrences, recording only one solo dissent over six years. He authored com- paratively fewer opinions than his reputation suggests (12 for a majority; 6 in dissent) as against 90 total Opinions (unanimous and nonunanimous) from 1931-1936. Only Van Devanter was less prolific. Brandeis is notable for his deference to socioeconomic experiments of state legislatures (the laboratories of democracy) and to admin— istrative agencies (e.g., Crowell v. Benson, 76/598). He had a regard for the sanctity of jury verdicts and court procedures, even if these were anti individual. He upheld union rights, against the individual if necessary, pos- sibly because of their relation to his ideas on industrial democracy (cf., Sean v. Tile Layers Protection Union, 81/1229). Benjamin Nathan Cardozo, though without wide public following, was prominent professionally among the elite of bench and bar. His confirmation by the Senate allegedly took ten seconds (The New York Times, July 10, 1938, pp. 1, 30). He had characterized himself as a judicial evo- lutionist, and felt his appointment "an interesting time 1In all instances, unless otherwise indicated, my data represent and refer to dissensual cases only. Unanimous ones are not treated. 198 to do my little share in translating into law the social and economic forces that throb and clamor for expression" (lpgg ). On coming to the Court, Cardozo probably had the most fully developed philosophy of any, and one he had set forth publicly (Cardozo, 1921; 1928). He spoke easily in terms of society and the social mind, but the vocabulary of individualism was conspicuously absent. Cardozo evidently had a definite conception of what government was required to do, hence in most cases was prepared to uphold the legislation giving government the power to do it. In this sense, his orientation to Opera- tional government was realistic, in terms of the 1930's. It was not the pro experimentation attitude of Brandeis. For Cardozo, more modern reasons were compelling. His sense of the public welfare, looking upon the needs of society as government's paramount concern, accorded with, if it did not occasion, the positive orientation to government, especially the critical tax and regulatory powers. Private rights he would uphold (e.g., insurance claim cases, freedom of speech) where not encroaching upon rightful governmental power. He held a restrained view of the judge's role: one which ended when it was estab- lished that the legislators were not arbitrary. Absent the qualification, and a very real activism together with its unquestionable legitimacy, are implied. 199 Table 6B indicates that he concurred with the major— ity, in dissensual cases, 53% of the time; with dissenters, U7% of the time. He has the highest number of authored Opinions for any justice over the entire period: U7 (22 with the majority; 25 with the dissent). Stone comes close with U6, but his breakdown is 17 for the majority and 29 for the dissent, though the latter figure gives Stone the high for the Court in authorship of dissents, with Cardozo second. In federal tax and regulatory cases, notably ICC, Cardozo's liberal directionality (pro govern- ment) is salient. It was a largess extended to state governments as well, particularly in areas such as taxa- tion of railroads, and of various private businesses. Harlan Fiske Stone came to the Court from Wall Street firms and 13 years as Dean of Columbia Law School. His peers later characterized his approach to constitu— tional issues as essentially pragmatic (92 E;_§9°’ 1956 [19U7]), but it irritated Stone to be designated a liberal. He did not like labels and he felt himself dis- tinguishable by the fact that, unlike Brandeis, he was not trying "to do anything socially" (Mason, §£one, 1956, p. U17). Nonetheless, his voting behavior, as noted, was in each set the most liberal. Of all the justices, Stone probably was most concerned with the deveIOpment of a decisional methodology (Dowling, 19Ul). His address for the Harvard tercentary celebration (Stone, 1936) contains 200 the core Of his thought regarding such development: especially, his belief in the adequacy of the common law system, provided the legal profession cast off a certain conservative habit of mind limiting the contemporary relevance of law. Table 68 indicates Stone concurred with the majority 82 times (U6%) and with the dissent, 95 times (SUZ).l He authored U6 total Opinions: 17 for the majority; 29 for the dissenters, more dissenting Opinions than anyone. Across all six terms, combining dissensual and nondis- sensual, he delivered 156 Opinions, the high for the Court. Impressions to the contrary, he was then the most vocal member on the Court, as well as, according to my data, the most liberal. His vote in tax cases both state and federal is at all times unidirectional. His majority opin- ion in Carmichael v. Southern Coal and Coke Compeny, 81/ 12U5, epitomizes this attitude. His general support of governmental power is nowhere more apparent than in the gold clause cases, where he goes further than any justice to sanction such power in regulation of the currency. Thus of all the justices, Stone is the most posi- tive in orientation to Operational government. An equally lStone had a period of extended absence during the 1936 term. As far as my data are concerned, this meant he did not participate in 11 of the total 36 dissensual cases for that term. 201 positive attitude to public welfare (even if he dis- avowed Brandeis' crusader approach) evidences itself in for example, go_§o v. Dubilier Condenser Corporation, 77/lllU, where Stone upholds the federal government's right to employees' inventions, as they are part of a public enterprise. Perhaps Stone had internalized a very definitive allocation system regarding society's goods. He had little doubt as to what exactly should be rendered to Caesar. It followed that private rights were cir- cumscribed and to be adapted to the century's new condi- tions. Judges were primarily the ones to delimit the new boundaries between individual and government, so the judicial process value Occupied a central position. In the area of civil liberties particularly, he would give courts much discretion, not only in openly abandoning stare decisis when necessary, but also specifying pro- cedural content in the Bill of Rights. Charles Evans Hughes became Hoover's chief justice by a 52-26 vote, hardly a thumping majority as votes for the chief justiceship go (Mason, 1958, p. 75). His be- havior on the Court contributes to his characterization as a Progressive. His updated Burkean conservatism con— tained enough social awareness and flexibility to be genteely liberal. Especially his dissent in Railroad Retirement Board v. Alton Railroad, 79/1U68, demonstrates this. He could relate to Theodore Roosevelt, though not 202 to William Jennings Bryan. He had an administrative mastery of the Court's business, which enabled him to run a fairly tight Operation in taut atmosphere, despite divisiveness. Assigning Opinions, he was "like a general deploying his army" (Frankfurter, 19U9, p. 3). Having "no particular pride of authorship" (McElwain, go;o,, p. 19), he valued an opinion rather in its potential for majority-making. There is much commentary upon what is apparently considered the extreme, at times discrediting, expediency dictating Hughes' tactics on the Court (Brant, 1937). The New York Times called him a "distinguished liberal on the Court" and credited him with a "basic liberal viewpoint" (August 28, 19U8, p. 6). My data indicate a man very much in the middle of the road, one trying to minimize cleavages in an all too obviously divided Court, and to maximize his own chief justiceship. During six years, he concurred with the majority 163 times (89% of the time), leaving only 11% of the time wherein he held nonmajority status. He authored few opinions, only 26: 21 of which were for a majority, indicating opinion deployment in form of payoffs. To guard against a jaundiced view, however, it should be added that over the period, combining unanimous and non- unanimous opinions, he delivered lUO. 202 to William Jennings Bryan. He had an administrative mastery of the Court's business, which enabled him to run a fairly tight operation in taut atmosphere, despite divisiveness. Assigning Opinions, he was "like a general deploying his army" (Frankfurter, 19U9, p. 3). Having "no particular pride of authorship" (McElwain, go;o,, p. 19), he valued an opinion rather in its potential for majority—making. There is much commentary upon what is apparently considered the extreme, at times discrediting, expediency dictating Hughes' tactics on the Court (Brant, 1937). The New York Times called him a "distinguished liberal on the Court" and credited him with a "basic liberal viewpoint" (August 28, 19U8, p. 6). My data indicate a man very much in the middle Of the read, one trying to minimize cleavages in an all too Obviously divided Court, and to maximize his own chief justiceship. During six years, he concurred with the majority 163 times (89% of the time), leaving only 11% of the time wherein he held nonmajority status. He authored few opinions, only 26: 21 of which were for a majority, indicating opinion deployment in form of payoffs. To guard against a jaundiced view, however, it should be added that over the period, combining unanimous and non— unanimous opinions, he delivered 1U0. 203 The composite picture is one of a man who rarely strayed from the center of power: and in decision making on this Court, given the tendency of the alignments generally, power was indeed in the center position. He did uphold the government and participated with the majority in the controversial gold clause cases, despite their being 5—U splits that he tried so to avoid. Typi- cal was his Opinion in Penny v. H;_§;A 79/912, that held it beyond congressional power to override the obligation of government bonds, but admitted it beyond the Court's power to effect a remedy for the injustice. The Chief Justice's orientation to operational government seems indeterminate, although in the latter years, it tended to become more positive. In his written Opinions there is an ambivalence, even Obfuscation. In his voting behavior, it is a half and half situation: neither completely positive nor completely negative. Certainly public welfare was an unambiguous value: he gave the majority opinion overruling Adkins and upholding the Washington minimum wage law (which Sutherland held violative of freedom of contract under XIV amendment) in the West Coast Hotel case, 81/703. But apparently pri- vate rights were equally valuable. Seemingly, this equality of the two dominant values led to ambivalence in the total value system, on the next level of generality. Obviously, the judicial process value was much with 2OU Hughes, but the administrative aspect was regnant, if not rampant. The Court's social role was minimal; its ad- ministrative, intercurial role maximal. Owen Josephus Roberts, conservative Republican, bland-mannered, devoutly Episc0pal, and completely unpre- dictable (The New York Times, May 18, 1955, p. 31), came to the Court fresh from his Teapot Dome triumph. He doubtless was the most changeable member of the Court. The literature tends to portray him as one extremely susceptible to cross-pressure and not a little unsure Of himself (Corwin, l9Ul, pp. 75-76). In terms of age, he was the youngest on the Court (55 at the time of appoint- ment). Cardozo, the nearest chronologically, was 62 when appointed in 1932, though he was the junior justice. That Roberts did occupy the pivotal position and was aware of it seems fairly supportable. In this sense, Rodell (1955) was not wrong in calling him at one time the most powerful man in the United States. Certainly without him, Hughes could not form majorities, though Roberts himself was much under the influence of the Chief Justice. At the time of his resignation, 19U5, he would note in a letter to Hughes that the greatest experience and satisfaction in his life had been working with him (Griswold, 1955, pp. 3U8-3U9). Table GB shows Roberts' participation in the major- ity 87% of the time: in the nonmajority, 13% of the 205 time: a decided centrist tendency. He was the chief author in only UU dissensual cases, 35 of these being majority Opinions, which gives him the high for the Court in that latter category. Roberts' written Opinions show him extremely anti ICC rulings. Of his behavior in state and federal tax cases, it can be said only that a marked instability is evident. His pro C leanings have been previously commented upon. Roberts' verbal behavior tends to obscure any orientation to operational government by a heavy overlay Of considerations of law: he stares myopically at the statutory text, apparently bending every effort to ignore the enacting authority. His voting behavior, however, evidences far more consistently than Hughes a rather nega- tive orientation. It was Roberts who, in the Alton Rail- noeo case, gave the majority Opinion holding the federal railroad retirement act unconstitutional. It was, in es- sence, an harrangue against the social policy aspects inhering in the act. Interestingly, it was Hughes who upheld, noting that industry should take care of its human wastage. Obviously private rights were more meaningful to Roberts than public welfare, though he did not confine private rights to a nineteenth century meaning, as his behavior in the C set indicates. The judicial process value, for Roberts, was narrowly circumscribed by the “V C \."o time: a decided centrist tendency. He was the chief author in only UU dissensual cases, 35 of these being majority Opinions, which gives him the high for the Court in that latter category. Roberts' written opinions show him extremely anti ICC rulings. Of his behavior in state and federal tax cases, it can be said only that a marked instability is evident. His pro C leanings have been previously commented upon. Roberts' verbal behavior tends to obscure any orientation to Operational government by a heavy overlay of considerations of law: he stares myopically at the statutory text, apparently bending every effort to ignore the enacting authority. His voting behavior, however, evidences far more consistently than Hughes a rather nega- tive orientation. It was Roberts who, in the Alton Rail- noeo case, gave the majority Opinion holding the federal railroad retirement act unconstitutional. ‘It was, in es— sence, an harrangue against the social policy aspects inhering in the act. Interestingly, it was Hughes who upheld, noting that industry should take care of its human wastage. Obviously private rights were more meaningful to Roberts than public welfare, though he did not confine private rights to a nineteenth century meaning, as his behavior in the C set indicates. The judicial process value, for Roberts, was narrowly circumscribed by the 206 constitutional framework. Indeed, the definitive state- ment on the slot machine theory of judicial decision mak- ing was his own majority opinion in H;_§; v. Butler, 80/U77. In other words, for Roberts, judicial activism went in the Opposite direction. It was essentially pro- hibitive action. James Clark McReynolds came to the Court in 191U, known then as a liberal for ardent antitrust prosecution while serving as assistant attorney general, then attorney general, of the United States. He comes across generally as an intolerant, insufferably dogmatic man with an un- bridled tongue and many "abrasive idiosyncracies." He was, as Bickel terms him, the Court's American primitive. Differences in judgment he perceived as contention of principles, and for McReynolds, tolerance in matters of principle was tantamount to traffic with the devil. He was a black-letter lawyer become black-letter judge. A favorite comparison was that Of the judicial role to baseball umpire (Early, 195U, p. 65), though judges had the written text of the Constitution as guide. In his eyes, the founding fathers had created a document that judges were to quite literally preserve. Table 68 indicates that McReynolds participated in the majority 68% of the time (127 occasions). Though he evidently did not fear dissent (61 times, 32%), it may be true that in the latter terms, he grew dispirited with 207 the Court's decision making. In authorship of opinions, only Stone and Cardozo wrote more dissents, while in total opinions, only Van Devanter and Brandeis wrote fewer. He authored a total 30 opinions, 19 of which were dissents. His written opinions suggest a pro individual orientation regarding court and trial procedure, par- ticularly where government, or government agents, are the‘ prosecution. The exception is, of course, antitrust. Perhaps no cases so much as the gold clause group so touched the jugular and literally brought forth his credo extemporaneously, in open Court. His dogged adherence to the doctrines of state sovereignty and noninterference of the federal government is nowhere better displayed than in an amazing separate dissent (Steward Machine CO. v. genie, 81/1279). He quotes at length from Franklin Pierce's message to the Senate, 185U, on a bill granting public lands to the states to benefit the indigent insane. The argument's theme is that the mass of the business of government is best left to the states, from which he concludes that ergo title IX of the Social Security Act (taxing em— ployers of 8 or more) is invalid interference of the kind Pierce described eighty years earlier. Of all on the Court, McReynolds is the most con- sistently and most extremely negative. He seems hardly capable of grasping operational government as either 207 the Court's decision making. In authorship of Opinions, only Stone and Cardozo wrote more dissents, while in total Opinions, only Van Devanter and Brandeis wrote fewer. He authored a total 30 opinions, 19 of which were dissents. His written Opinions suggest a pro individual orientation regarding court and trial procedure, par- ticularly where government, or government agents, are the prosecution. The exception is, of course, antitrust. Perhaps no cases so much as the gold clause group so touched the jugular and literally brought forth his credo extemporaneously, in open Court. His dogged adherence to the doctrines of state sovereignty and noninterference of the federal government is nowhere better displayed than in an amazing separate dissent (Steward Machine Co. v. QEXiE: 81/1279). He quotes at length from Franklin Pierce's message to the Senate, 185U, on a bill granting public lands to the states to benefit the indigent insane. The argument's theme is that the mass of the business of government is best left to the states, from which he concludes that ergo title IX of the Social Security Act (taxing em- ployers of 8 or more) is invalid interference of the kind Pierce described eighty years earlier. Of all on the Court, McReynolds is the most con- sistently and most extremely negative. He seems hardly capable of grasping operational government as either 208 concept of reality. His ideal seemed to be some kind of perpetual interregnum. He did not really conceive Of government as an active agent, save when paradoxically its power was necessary to preserve those conditions mak- ing government unnecessary. His concept of public wel- fare, judging from his voting behavior, was hardly wholistic in the sense of being directed at a total society. Rather it was atomized into individual units. Thus public welfare was, in effect, denied on the basis of private rights. The judicial process value was con- ceived as involving a negative guardianship of a written constitutional text, and positive resistance to any extrapolative forays beyond. Willis Van Devanter's path to the Court began when he left Indiana for the Wyoming Territory in 188U. In- volvement with the men who shaped that territory for statehood, with regional politics, and with the Union Pacific all played their roles in his nomination as Circuit Judge for the 8th Circuit by Roosevelt, 1903, and in his appointment as associate justice by Taft, 1910. He made enemies, among them William Jennings Bryan, who could not forget Van Devanter's vigorous campaign on horseback for William McKinley back in the Wyoming days. The justice was one of the most indefatigable members on the Court, though more notably able in conference (re- garding temperament, industry, expertise) than in written 209 product. Van Devanter's retirement letter, May 18, 1937 (The New York Times, February 9, 19Ul, p. U7), signaled turning of the tide in the Court packing affair. He was thereby first to take advantage of the new retirement statute for federal judges. As noted, Tables 68, 6C, and 6D do not display Van Devanter so implacably conservative as much of the literature implies. He was in the majority 81% of the time (152 instances) and with the dissent, 35 times (19%). His seeming inability to write without extreme difficulty is obvious when considering his written output. During the six year period, he authored four Opinions: two majority; two dissents. Considering unanimous and non- unanimous cases, he wrote approximately 22 or 26 Opin— ions (Hodell, 1955, gives 22; Harvard Law Review, 1937- 1038, gives 26). The general average for each (other) justice was at least 20 opinions per annum. The occasion of two written Opinions focused on the equal protection clause of XIV amendment, which he interpreted as requiring states to have well-defined categories for taxation pur— poses. Van Devanter's orientation to operational govern- ment is indicated chiefly by nonverbal behavior. It tends generally toward a negative voting direction. Pub- lic welfare he evidently saw as an inductive thing, so private rights received positive, primary focus. The 210 judicial process value probably was his most positive in the sense of tending toward an active Court, functioning freely, flexibly, determinatively, within the constitu- tional framework. Especially corroborative is his rank in the J scale set. George Sutherland, when a U. S. Senator from Utah, impressed and befriended another senator who was to ap- point him tO the Court: Warren Harding. Indeed, during Harding's presidential campaign, Sutherland was looked upon as the former's Colonel House. Influenced by Thomas Cooley at the University of Michigan, Sutherland became, and remained, a disciple Of Herbert Spencer and the laissez—faire world his system necessitated and legiti- mized. The belief was deep-rooted in personal experience that stretched from the Utah frontier to the U. S. Supreme Court. Sutherland was another justice to have lived the American dream. His Spencerian system was completely self-contained, neither questioned nor subjected to any form of reality testing. In it, the individual was the ultimate political reality, while social aggregates received little consider- ation and less place. Stress on the individual did, however, make for a procedural liberalism which demanded absolute equality before law. Such equality, the "uni- versal solvent" of arbitrary distinctions, accorded with the best laissez-faire tenets (Paschal, 1951, pp. 116-153). 211 To Sutherland, the Constitution provided the ideal govern- ment: multiple points of power in perpetual checkmate. A tally indicates Sutherland participated in the majority on lU3 occasions (79%) and in the nonmajority on 38 occasions (21%). He authored a total of 25 majority Opinions and 9 dissents, the number of dissents on a marked increase by the 1936 term. In toto, across unani- mous and nonunanimous cases for the six terms, he wrote only 112 opinions. This suggests that the mouthpiece position credited to him is not that dominant in compari- son with the other justices. His written opinions sug- gest a decided antipathy to state tax and regulatory mea- sures. Probably the most representative utterance in his dissent in the Minnesota Mortgage Moratorium Law case, 78/Ul3, essentially a discourse on the process of constitutional construction. The West Coast Hotel dis- sent, 81/703, a delivery on the function of a judge and the stability of the Constitution in the face of the ebb and flow of economic events, also supplements his philo- sophy. Sutherland's orientation to operational government, admitting gradations, is basically that of Van Devanter, Butler, and McReynolds. Government is the negative, passive force that Social Darwinists talked of. Mini- mally necessary, it should therefore be minimally active. Along with the best of British liberals, public welfare 212 was private rights of the individual summed. It was the categorical imperative applied to government. One therefore looked to the preservation of private rights. Public welfare was an automatic corollary. It was Sutherland who wrote for the majority in the Scottsboro cases, upholding the right to counsel as inherent in and demanded by the XIV amendment, especially in proceedings under tense atmosphere. Regarding the judicial process value, his discourse in West Coast Hotel implies a re- strained rOle unless active government is constitutionally Offensive. Then the Court's role becomes obstructive or restorative, depending on the point of view. Pierce Butler, Democrat, Roman Catholic, and self- made man, was an appointee Chief Justice Taft.had counted on to join Van Devanter, McReynolds, Sutherland and Sanford for purposes of "steadying the boat" (Curtis, 19U7, p. 96). The well—known corporation lawyer from the Northwest, general attorney for prominent railroads, had come far. His story was another American epic, though more along Horatio Alger lines than either Van Devanter's or Sutherland's. In 1939, Hughes, surveying Butler's 17 year tenure, would sum it as an endeavor "to keep open the traditional path to individual achievement which he himself had trod" (8U E;_§§" 1U39). "Good, old-fashioned, Anglo-Saxon individualism" Butler called it. 213 One of the Court's experts on valuation of rail property (Brandeis, with another theory, was the other), he always perceived the railroads as bearers of the American civilization and felt that their responsibility for its development should be rightfully recognized, in- indeed rewarded (Brown, 19U5, pp. ll-32L Character- istically, he championed the rights of the individual citizen; was anti government in interpreting due process and procedural guarantees of the Bill of Rights and XIV amendment; found police powers most acceptable when sup- pressing violators Of social order; concurred in Southern legislation regarding its "peculiar problem"; and assigned low priority to alien rights. My own count shows Butler with the majority 67% of the time (126 instances) and dissenting 33% (62 in- stances). He authored only 27 opinions: lU, majority; 13, dissents. In common with Sutherland, he tended to be more liberal in the international field, especially regarding treaty interpretation. Inevitably he is pro- railroads, anti ICC. His dissent in Senn V. Tile Layers Protective Union, 81/1229, slamming "victimization by unions" and upholding "the right to engage in the common occupations Of life" admirably demonstrates his pro entrepreneurial orientation. It is of interest that Brandeis, writing the majority opinion, upheld union measures against an unOOOperative, individual contractor. 21U Also noteworthy is Butler's dissent in Hansen v. EEEE: 78/969, narrowly interpreting the 1917 Immigration Act to bar alien reentry for immoral purposes. The major- ity's haggling over whether these purposes were dominant or subordinate seemed an insubstantial consideration. The Butler approach is operational government was the essence of laissez-faire. As noted, this "anti" orientation evidences itself particularly in ICC cases, the railroads constituting nineteenth century epitomies of private enterprise. Private rights tend to be mainly acquisitive (economic) and procedural (noneconomic) with him. Public welfare per se is hardly dignified by a place in this scheme. He holds the judicial process value in a manner that protects individual from government and preserves intact the wide-Open enterpreneurial context he believed in. In other words, this latter value was ex- tremely and primarily functional. Conclusion Thus briefly are the justices on this Court char- acterized. I have not attempted case by case, opinion by opinion exegesis. Other commentaries do as much. They were consulted, and are listed in the accompanying bibliography. My own focus has been the Hughes Court, and the psychological dimensions of its decision making process, ascertained on the basis of aggregating 215 decisional data. Results are given in terms of general tendencies, not discrete Opinions. Essentially, this analysis is on another level than much of the commentary, and is, for that reason, to a degree noncomparable. As caveat to the reader, it must be repeated that . the findings here are on the basis of dissensual cases. 7 Unanimous ones are not treated. This is a consequence of the methodology employed, and of the fact that there are no distinctions in a unanimous decision. In terms of understanding decision making, however, I do not think that the approach utilized at all distorts reality. One has merely to remember that dissensual cases are one side of decisional output. But for empirical research, they are by far the most important side, precisely because they "tell" more. Justices themselves have pointed out that unanimous Opinions belong to and represent no one in particular. They are merely Opinions having elements sufficiently innocuous to be supported by all, and generally are not even sufficiently integrated to form anything so structured as a consensus. The Hughes Court has many modern aspects; its divisiveness much in evidence; its output examined as probably no prior Court's had been. Assuming (and per- haps this may be unwarranted, in view of the contemporary voting behavior research) the voting public then was aware and involved, both Court and citizenry were 216 occupied with the same preponderant issue. As my con- clusions suggest, this factor of operational government also dominated the decision making proc ss during these six terms of the Hughes Court. APPENDICES APPENDIX A GUTTMAN SCALOGRAMS APPENDIX A GUTTMAN SCALOGRAMS The following pages describe the four successive sets of scalograms used, in such manner as to allow replication. The initial categories of all scales are four sets (J-Jurisdiction; C-Civil Liberties; E-Economic; F-Fiscal). Subcategories within each set are determined according to dominant subject matter. These subcategories constitute scales, which themselves may be further broken down into subscales or combined variously with other scales. The general format of description is as follows. Description Set and title of scale designated Total number of cases in scale, with breakdown indicating duplicates (cases appearing elsewhere in the same set) expansions (additional vote tallies of Opinions on the basis of semantic differential), when such are appropriate AO (attitude toward object) and AS (attitude toward situation) Data Cases (arranged according to extremeness of item marginals from most to least positive: positive here equated with the most liberal directionality, in general terms) Abbreviated citation (from Lawyers' Edition of the U.S. Reports, giving volume and page) Item marginals in parentheses 219 220 Results Scale scores of each justice* Corresponding ranks for each justice on basis of his scale score Coefficient of reproducibility (R) Minimal marginal reproducibility (MMR) Total nonscalar responses (NSR) *Key to Justices: Brandeis Br Cardozo Ca Stone St Hughes H Roberts R McReynolds McR Van Devanter VanD Sutherland Su Butler Bu I. Fifty-Six Variable Sets J Scale Set (N = 5 scales) 1. Description J - Jurisdiction (n = 15 cases; including one expansion) AO - petitioner claiming federal court jurisdiction (Court/clientele) AS - propriety of exercising Supreme Court juris- diction Over determination of lower federal/ state courts and administrative commissions AOl- federal courts as appropriate forum for litigation in question (court/court) ASl- lower federal courts relations with Supreme Court Data Sorrells V. US 77/U13 (8—1) Clark V. Williard 78/1160 (8-1) Cate v. Beasley 81/21 (7-1) Leman v. Krentler-Arnold 76/389 (7-1) Becker Steel v. Cummings 80/5U (7-2) D.C. v. Clawans 81/8U3 (7-2) Senn v. Tile Layers Union 81/1229 (S-U) Wood v. Broom 77/131 (U-5) Rogers v. Guaranty Trust 77/652 (3-5) Herndon v. Lowry 79/1530 (3—6) (exp) 77/652* - Colorado v. Symes 76/1253 (2—7) Hurn v. Oursler 77/11U8 (2-7) S. Carolina v. Bailey 77/1292 (2-7) U.S. v. W. Virginia 79/15U6 (1—8) Expansion: 77/652: Br+, Ca-; St+; H-; RN; McR-; VanD-; Su-; Bu— (2-6) Results Justice Scale Score Rank Br .93 1 Ca .71 3 St .86 2 H .53 5 R .SU U McR .93 9 R .931 VanD .60 6.5 MMR .707 Su .60 6.5 NSR 6 Eu .67 8 222 2. Description J - State Cases Subscale (n - 9 cases; including one expansion) AO - same AS - propriety of exercising Supreme Court jurisdic— tion over determination of cases arising in state courts Data Results Justice Scale Score Rank 78/1166 Br .89 1 81/21 Ca .78 3 81/1229 St .88 2 77/131 H .67 5 7 77/652 R .57 u 79/1530 McR 1.00 9 76/1253 R .967 VanD .78 7.5 (exp) 77/652' MMR .780 Su .67 6 77/1292 NSR 2 Bu .78 7.5 3.. Description J — Federal Cases Subscale (n = 6 cases) AO - same AS - propriety of exercising Supreme Court jurisdiction over determination of cases out Of lower federal courts Data Results Justice Scale Score Rank 77/U13 Br 1.00 1 76/389 Ca .60 U 81/8U3 St .83 2 80/5U H .67 U 77/llU8 R .50 7 79/15U6 McR .83 9 R .925 VanD .67 U MMR .677 Su .50 7 NSR 2 Bu .50 7 U. Description J — Full Faith and Credit (n = 6 cases; including one duplicate) AO- person or property (claiming) one state's authority and protection within another state's jurisdiction 223 AS - limits set to domestic jurisdiction and local policy making by the constitutional requirement of full faith and credit Data Broderick v. Rosner 79/1100 (8-1) Borax Consolidated v. Los Angeles 80/9 (8-1) (dup) 78/1160 (8-1) Milwaukee County v. White Co. 80/220 (7-2) Sanders v. Armour Fertilizer Works 78/1206 (U—5) Yarborough v. Yarborough 78/269 (2—7) Results Justice Scale Score Rank Br .83 3.5 1 Ca .83 2 St 1.00 1 H 083 305 R .67 6 McR .83 9 R 1.00 VanD .67 6 MMR .758 Su .67 6 NSR l Bu .50 8 Description J - Jurisdiction Subscale on Federal Cases and C—Subscale on Subconstitutional Fair Procedure (involving cases from federal courts) (n = 12 cases; including five duplicates) AO — any federal court within the context of its position in the federal judicial system (systemic context) AS - competency of any given federal court to adjudicate matter at hand AS2- finality of judgment at a particular, hierarchical level within the federal system Data Dunn v. U.S. 76/356 (8-1) (dup) 77/U13 (8-1) Burroughs v. U.S. 78/U8U (8-1) (dup) 76/389 (7-1) Funk V. U.S. 78/369 (7-2) (dUP) 81/8U3 (7-2) Reed v. Allen 76/105U (3-6) Grau v. U.S. 77/212 (2-7) Sgro v. U.S. 77/260 (2—7) 22U (dUp) 77/11U8 (2—7) Fairmont Glass v. Cub Fork Coal 77/U39 (2-7) (dUP) 79/15U6 (1-8) Results Justice Scale Score Rank Br .75 3 Ca .80 2 St .92 l H .50 5.5 R .50 5.5 McR .92 9 R .936 VanD .50 5.5 MMR .682 Su .50 5.5 NSR U Bu .75 8 C Scale Set (N = 19 scales) 6. Description C - Combined Master Scale of all C cases (n = 2U) AO - persons allegedly deprived of non-economic, civil rights under the Bill of Rights, XIV amendment guarantees and various statutory prescriptions AS - propriety of Supreme Court intervention to insure maintenance, by lower courts, of federal standards both constitutional and statutory Data Sorrells v. U.S. 77/U13 (8—1) Burroughs v. U.S. 78/U8U (8-1) Hansen v. Haff 78/968 (8-1) Dunn v. U.S. 76/356 (8-1) U.S. v. Limehouse 76/8U3 (7-1) Powell v. Alabama #98 77/159 (7-2) Patterson v. Alabama #99; Weems v. Alabama #100 77/159 Funk v. U.S. 78/369 (7-2) D.C. v. Clawans 81/8U3 (7—2) Cook v. U.S. 77/6U (6-2) Factor v. Laubenheimer 78/315 (6—3) U.S. v. Wood 81/78 (5—3) Nixon v. Condon 76/98U (5-U) Snyder v. Massachusetts 78/67U (5—U) Herndon v. Lowry 81/1066 (5-U) Wood v. Broom 77/131 (U-5) Dimick v. Schiedt 79/603 (U—5) Reed v. Allen 76/105U (3—6) 225 Herndon v. Georgia 79/1530 (3-6) Grau v. U.S. 77/212 (2—7) Sgro v. U.S. 77/260 (2-7) Fairmont Glass Works v. Cub Fork Coal 77/U39 (2-7) U.S. v. Murdock 78/381 (2-7) Results Justice Scale Score Rank Br .75 3 Ca 1.00 1.5 St 1.00 1.5 H .71 U R .63 5 McR .79 8 R .937 VanD .57 6 MMR .763 Su .5U 7 NSR l3 Bu .88 9 Description C - Federal Cases in C Master (n = 17; all duplicates) A0 - persons allegedly deprived of non-economic, civil rights as violators of, plaintiffs under, federal legislation or subject to federal jurisdiction AS - propriety of Supreme Court as arbitrer between demands of federal legislation or procedures used to enforce that legislation and the civil rights of those affected Data Results Justice Scale Score Rank 77/U13 Br .71 3 78/U8U Ca 1.00 1.5 78/968 St 1.00 1.5 76/356 H .65 u 76/8U3 R .59 5 78/369 McR .76 8 81/8U3 R .9U3 VanD .56 6 77/6U MMR .735 Su .53 7 78/315 NSR 9 Bu .82 9 81/78 79/603 77/131 76/105U 77/212 77/260 77/U39 78/381 225 Herndon v. Georgia 79/1530 (3-6) Grau Sgro v. U.S. 77/212 (2-7) v. U.S. 77/260 (2-7) Fairmont Glass Works v. Cub Fork Coal 77/U39 (2-7) U.S. v. Murdock 78/381 (2—7) Results Justice Scale Score Rank Br .75 3 Ca 1.00 1.5 St 1.00 1.5 H .71 U R 063 5 MOR .79 8 R .937 VanD .57 6 MMR .763 Su .5U 7 NSR 13 Bu .88 9 Description C - Federal Cases in C Master (n = 17; all duplicates) A0 — AS - Data 77/U13 78/U8U 78/968 76/356 76/8U3 78/369 81/8U3 77/6U 78/315 81/78 79/603 77/131 76/105U 77/212 77/260 77/U39 78/381 persons allegedly deprived of non-economic, civil rights as violators of, plaintiffs under, federal legislation or subject to federal jurisdiction propriety of Supreme Court as arbitrer between demands Of federal legislation or procedures used to enforce that legislation and the civil rights of those affected Results Justice Scale Score Rank Br .71 3 Ca 1.00 1.5 St 1.00 1.5 H .65 U R .59 5 McR .76 8 R .9U3 VanD .56 6 MMR .735 Su .53 7 NSR 9 Bu .82 9 8. 226 Description C - State Cases in C Master (n = 9; all duplicates) AO - persons allegedly deprived of non-economic, civil rights as violators of, or plaintiffs under, state legislation AS - propriety of Supreme Court as arbitrer between demands of state legislation (or procedures used to enforce state legislation) and the civil rights of those subject thereto Data Results Justice Scale Score Rank #98; #99; #100 77/159 Br .78 3 78/315 Ca 1.00 1.5 76/98U St 1.00 1.5 78/67U H .78 U 81/1066 R .67 5 77/131 McR .78 8 79/1530 R .901 VanD .56 6 MMR .792 Su .56 7 NSR 7 Eu 1.00 9 Description C - Procedural Cases in C Master (n = 18; all duplicates) AOl— accused party alleging denial of procedural rights ASl- appeal for Supreme Court application of federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by state/federal law A02- accused party's position Vis-a—vis right to jury trial (V, VI, VII amendments) AS2— abSence, or alleged unfair application of, constitutional right to jury trial Data Results Justice Scale Score Rank 75/356 Br .72 3 77/U13 Ca 1.00 1.5 78/U8U St 1.00 1.5 #98; #99; #100 H .67 U 77/159 R .56 5.5 78/369 McR .89 9 81/8U3 R .992 VanD .56 5.5 81/78 MMR .761 Su .56 7 78/67U NSR U Bu .89 8 81/1066 8. 226 Description C _ State Cases in C Master (n = 9; all duplicates) AO - persons allegedly deprived of non-economic, civil rights as violators of, or plaintiffs under, state legislation AS - propriety of Supreme Court as arbitrer between demands of state legislation (or procedures used to enforce state legislation) and the civil rights of those subject thereto Data Results Justice Scale Score Rank #98; #99; #100 77/159 Br .78 3 78/315 Ca 1.00 1.5 76/98U St 1.00 1.5 78/67U H .78 U 81/1066 R .67 5 77/131 McR .78 8 79/1530 R .901 VanD .56 6 MMR .792 Su .56 7 NSR 7 Bu 1.00 9 Description C - Procedural Cases in C Master (n = 18; all duplicates) AOl— accused party alleging denial of procedural rights ASl- appeal for Supreme Court application of federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by state/federal law A02- accused party's position vis-a-vis right to jury trial (V, VI, VII amendments) AS2- absence, or alleged unfair application of, constitutional right to jury trial Data Results Justice Scale Score Rank 75/355 Br .72 3 77/Ul3 Ca 1.00 1.5 78/U8U St 1.00 1.5 #98; #99; #100 H .67 U 77/159 R .56 5.5 78/369 McR .89 9 81/8U3 R .992 VanD .56 5.5 81/78 MMR .761 Su .56 7 78/67U NSR U Bu .89 8 81/1066 227 79/603 76/105U 79/1530 77/212 77/260 77/U39 78/381 10. Description C - Jury Trial (n = 6; all duplicates) AO - accused party's position vis-a-vis right to jury trial (V, VI, VII amendments)‘ i AS - absence or allegedly unfair application Of, constitutional right to jury trial Data Results Justice Scale Score Rank 77/Ul3 Br .67 U.5 81/8U3 Ca 1.00 1.5 81/78 St 1.00 1.5 78/67U H .83 3 79/603 R .50 6 78/381 McR .83 9 R .95U VanD .67 U.5 MMR .778 Su .67 7 NSR 2 Eu .83 8 11. Description C - Combined Due Process and Subconstitutional Fair Procedure (n = 12, all duplicates) AO - accused party alleging denial of procedural rights AS - appeal for Supreme Court application of federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by state/federal law Data Results Justice Scale Score Rank 76/356 Br .75 3 78/U8U Ca 1.00 1.5 #98; #99; St 1.00 1.5 #100 77/159 H .58 U.5 78/369 R .58 U.5 81/1066 McR .92 8.5 76/105U R '1.00 VanD .50 6.5 79/1530 MMR‘ .750 Su .50 6.5 77/212 NSR l Bu .92 8.5 12. 13. 228 77/260 77/U39 Description C - Subscale of Subconstitutional Fair Procedure (n = 7; all duplicates) AO - accused, negatively sanctioned by law, seeking remedy in rectification of procedure AS — propriety of Supreme Court exercising judgment upon lower federal courts' application of fair procedure standards Data Results Justice Scale Score Rank 76/356 Br .57 3 78/U8U Ca 1.00 1.5 78/369 St 1.00 1.5 76/105U H .57 5.5 77/212 R .57 5.5 77/260 McR .86 8.5 77/U39 R 1.00 VanD .57 5.5 MMR .730 Su .57 5.5 NSR l Bu .86 8.5 Description C - Subscale of Due Process (n = 5; all duplicates) AO - accused party seeking XTVamendment guarantees allegedly denied by state AS - appeal for Supreme Court application of XIV amendment, due process standards to state statutes Data Results Justice Scale Score Rank #98; #99; Br 1.00 2 #100 77/159 Ca 1.00 2 81/1066 St 1.00 2 79/1530 H .80 U.5 R .80 U.5 McR 1.00 8.5 R 1.00 VanD .60 6.5 MMR .866 Su .60 6.5 NSR O Bu 1.00 8.5 1U. 15. 229 Description C _ AS - A0 — AS - Data 77/Ul3 78/U8U 78/968 76/8U3 81/8U3 77/6U 78/315 81/78 76/98U 81/1066 77/131 79/1536 77/212 77/260 78/381 Substantive Cases in C Master (involving statutory construction and constitutional interpretation) (n = 15; all duplicates) persons allegedly deprived of non—economic civil rights under application of given statute, state or federal effective meaning of statute in instant case (i.e., practical meaning as evidenced in application); especially meaning as compatible with civil rights of subjects persons allegedly deprived of non-economic, civil rights through Operation of federal/ state statutes constitutional guarantees as measure of the statute and potential remedy for purported grievance Results Justice Scale Score Rank Br .73 Ca 1.00 St 1.00 H .67 R .67 McR .80 R .9U8 VanD .50 MMR .752 Su .60 NSR 7 Bu .80 (EN ONKO JI'U‘lf-‘HUU U'IU‘I Description C .. AO — AS — Statutory Construction - Cases from C Master (n = 1U; all duplicates) persons allegedly deprived of non-economic, civil rights under application of statute state/federal effective meaning of statute in instant case (i.e., practical meaning as evidenced in application); especially meaning as com- patible with civil rights of subjects 230 Data Results Justice Scale Score Rank 77/U13 Br .71 3 78/U8U Ca 1.00 1.5 78/968 St 1.00 1.5 76/8U3 H .6U 5 77/6U1 R .6U U 78/315 McR .79 9 81/78 R .9U3 VanD .5U 6 76/98U MMR .750 Su .6U 7 81/1066 NSR 7 Bu .79 8 77/131 79/1530 77/212 77/260 78/381 Description C - Constitutional Interpretation - Cases from C Master (n = 7; all duplicates) AO — persons allegedly deprived of non-economic, civil rights through the Operation of federal/state statutes AS - constitutional guarantees as measure of statute and potential remedy for purported grievances Data Results Justice Scale Score Rank 81/8U3 Br .57 3 81/78 Ca 1.00 1.5 78/67U St 1.00 1.5 81/1066 H .57 U 79/1530 R .57 6 77/212 McR .86 8 77/260 R .958 VanD .57 5 MMR .778 Su .86 7 NSR 3 Bu 1.00 9 Description C - Federal Substantive Cases from C Master (involving statutory construction and con- stitutional interpretation) (n = 12; all duplicates) 231 A01 - persons allegedly deprived of non-economic, civil rights under application of federal statute AS - effective meaning of federal statute in instant case (i.e., practical meaning as evidenced in application); especially meaning as compatible with civil rights of subjects AO2 - persons allegedly deprived of non—economic civil rights through Operation of federal statutes A82 - constitutional guarantees as measure of the statute and potential remedy for purported grievances Data Results Justice Scale Score Rank 77/Ul3 Br .67 3.5 78/U8U Ca 1.00 1.5 78/968 St 1.00 1.5 78/8U3 H .67 5.5 81/8U3 R .67 5.5 77/6U McR .75 9 78/315 R .928 VanD .6U 5.5 81/78 MMR .738 Su .50 7 77/131 NSR 7 Bu .75 8 77/212 77/260 78/381 Description C - Federal Procedural Cases from C Master (involving due process, subconstitutional fair procedure, and jury trial) (n = 12; all duplicates) A0l — accused party alleging denial of procedural rights ASl - appeal for Supreme Court application of federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by federal law (as applied by state/ federal officials) AO2 - accused party's position vis-a-vis right to jury trial (V, VI, VII amendments) AS - absence, or alleged unfair application of, constitutional right to jury trial 19. 20. 232 Data Results Justice Scale Score Rank 76/356 Br .67 3. 77/Ul3 Ca 1.00 1.5 78/U8U St 1.00 1.5 78/369 H .58 U 81/8U3 R .50 5.5 81/78 McR .92 9 79/60 R 1.00 VanD .50 5.5 76/105U MMR .736 Su .58 7 77/212 NSR l Bu .83 8 77/260 77/U39 78/381 Description C - Federal Cases involving Statutory Construction (n = 11; all duplicates) AO - persons allegedly deprived of non-economic, civil rights under application of federal statute AS - effective meaning of statute in instant case (i.e., practical meaning as evidenced in application), especially meaning as compatible with civil rights of subjects Data Results Justice Scale Score Rank 77/Ul3 Br .6U 3.5 78/U8U Ca 1.00 1.5 78/968 St 1.00 1.5 76/8U3 H .6U 5.5 77/6U R .6U 3.5 78/315 McR .73 9 81/78 R .918 VanD .60 5.5 77/131 MMR .725 Su .55 7 77/212 NSR 7 Bu .73 8 77/260 78/381 Description C - Federal Cases involving Constitutional Interpretation (n = U; all duplicates) A0 - persons allegedly deprived Of non-economic, civil rights guaranteed by the federal constitution, Bill of Rights 233 AS - Constitutional guarantees as criteria of statute and/or potential remedy for purported grievances Data Results Justice Scale Score Rank 81/8U3 Br .50 U.5 81/78 Ca 1.00 1.5 77/212 St 1.00 1.5 77/260 H .50 U.5 R .50 U.5 McR 1.00 8.5 R 1.00 VanD .50 U.5 MMR .750 Su .75 7 NSR O Bu 1.00 8.5 Description C - State Substantive Cases (involving statutory construction and constitutional interpretation) (n = 5; all duplicates) AOl - persons allegedly deprived of non-economic civil rights under application of state statute ASl - effective meaning of statute in instant case (i.e., practical meaning as evidenced in application), especially meaning as com- patible with civil rights of subjects AO2 — persons allegedly deprived of non—economic, civil rights through Operation Of state statutes AS2 - federal constitutional guarantees as measure of statute and/or potential remedy for pur- ported grievance (XIV and I amendments here) Data Results Justice Scale Score Rank 78/315 Br .80 3 76/98U Ca 1.00 1.5 81/1066 St 1.00 1.5 77/131 H .60 5 79/1530 R .60 U McR .80 7 R .956 VanD .80 7 MMR .822 Su .80 7 NSR 2 Bu 1.00 9 23U 22. Description C - State Procedural Cases (involving due process and subconstitutional fair procedural and jury trial) (n = 6; all duplicates) AO - accused party alleging denial of procedural rights AS - appeal for Supreme Court application of Federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by state law AO? - accused party's position vis-a-vis right to ’ jury trial (V, VI, VII amendments) A82 - absence, or alleged unfair application of, constitutional right to jury trial Data Results Justice Scale Score Rank #98; #99; #100 77/159 Br .83 3 78/67U Ca 1.00 1.5 81/1066 St 1.00 1.5 79/1530 H .83 U R .67 5.5 McR .83 8 R .952 VanD .67 5.5 MMR .81U Su .50 7 NSR 3 Bu 1.00 9 23. Description C - State Cases involving Federal Constitutional Interpretation (n = 3; all duplicates) AO - persons allegedly deprived of non-economic, civil rights through Operation of state statutes AS — federal constitutional guarantees as measure of statute and potential remedy for purported grievance Data Results Justice Scale Score Rank 78/67U Br .67 3 81/1066 Ca 1.00 1.5 79/1530 St 1.00 1.5 H .67 U R .67 7 McR .67 5.5 22. 23. 23U Description C - State Procedural Cases (involving due process and subconstitutional fair procedural and jury trial) (n = 6; all duplicates) AOl - accused party alleging denial of procedural rights ASl - appeal for Supreme Court application of Federal constitutional standards (procedural guarantees) on part of one negatively sanctioned by state law AO2 - accused party's position vis-a-vis right to jury trial (V, VI, VII amendments) AS2 - absence, or alleged unfair application Of, constitutional right to jury trial Data Results Justice Scale Score Rank #98; #99; #100 77/159 Br .83 3 78/67U Ca 1.00 1.5 81/1066 St 1.00 1.5 79/1530 H .83 U R .67 5.5 McR .83 8 R .952 VanD .67 5.5 MMR .81U Su .50 7 NSR 3 Bu 1.00 9 Description C - State Cases involving Federal Constitutional Interpretation (n = 3; all duplicates) AO - persons allegedly deprived of non-economic, civil rights through Operation of state statutes AS - federal constitutional guarantees as measure of statute and potential remedy for purported grievance Data Results Justice Scale Score Rank 78/67U Br .67 3 81/1066 Ca 1.00 1.5 79/1530 St 1.00 1.5 H .67 U R .67 7 MOR .67 5.5 235 R .925 VanD .67 5.5 MMR .816 Su 1.00 8.5 NSR 2 Bu 1.00 8.5 2U. Description C - State Cases involving Statutory Construction (n = 5; all duplicates) A0 - persons allegedly deprived of non-economic, civil rights under application of state statute AS - effective meaning of statute in instant case (i.e., practical meaning as evidenced in application); especially meaning as com— patible with civil rights of subjects Data Results Justice Scale Score Rank 78/315 Br .80 3 76/98U Ca 1.00 1.5 81/1066 St 1.00 1.5 77/131 H .60 5 79/1530 R .60 U McR .80 7 R .956 VanD .80 7 MMR .822 Su .80 7 NSR 2 Eu 1.00 9 E Scale Set (N = 21 scales) 25. Description E — Combined State and Federal Regulation (also AO includes subscales on state regulation; anti— trust; ICC; commerce regulation; federal regulatory agencies) (n 66; including six expansions and one memorandum case) object of state/federal regulation: corpora- tion; stockholder; business enterprise subject to ICC; government employee; private enter- prise (railroads, insurance companies, public utilities, dairies); businesses engaged in monopolistic activity 236 AS - scope of the legislative powers (state/federal) to insure public welfare by regulation; specifically, to regulate monopolistic ten— dencies of business; to insure equal protec- tion of law and due process; to provide over- sight agencies (regulatory); to regulate commerce, and competition Data Adams v. Mills 76/118U (8—1) Stephenson v. Binford 77/288 (8-1) Swayne and Hoyt v. U.S 81/659 (8-1) Norwegian Nitrogen Products CO. v. U.S. 77/796 (8-1) Appalachian Coal, Inc. vu U.S. 77/825 (8-1) Clark v. Williard 78/1100 (8-1) Ashwander v. TVA 80/688 (8—1) U.Sé v. American Sheet and Tin Plate CO. 81/1186 ( -1) Milwaukee County v. White Co. 80/220 (7-2) Memo. case: #2 Great Atlantic and Pacific Tea CO. v. Maxwell 76/500 (7—2) FTC v. Royal Milling Co. 77/706 (7—2) Becker Steel v. Cummings 80/5U (7-2) Los Angeles Gas and Electric CO. v. Railroad Commission of California 77/1180 (6—2) Nebbia v. New York 78/9U0 (5-U) Metropolitan Casualty Ins. CO. v. Brownell 79/1070 (5- ) Borden's Farm Products CO. v. Ten Eyck 80/669 (5—U) West Coast Hotel Co. v. Parrish 81/703 (5-U) Highland Farms Dairy v. Agnew 81/835 (5-U) NLRB v. Jones and Laughlin Steel Corp. #U2l 81/893 (5-U) NLRB v. Fruehauf Trailer Co. #U20—2l 81/893 NLRB v. Friedman-Harry Marks Clothing Co. #U22-23 81/893 The Associated Press v. NLRB 81/953 (5-U) Senn v. Tile Layers Protective Union 81/1229 (5—U) U.S. V. Swift and CO. #568 76/999 (U-2) American Wholesale Grocers Association v. Swift and CO. #569 76/999 National Wholesale Grocers Association v. Swift and CO. #570 76/999 ICC v. New York, New Haven and Hartford RR Co. 77/2U8 (U-3) Texas and Pacific Rail Co. v. U.S. 77/1U10 (U-5) Arrow-Hart and Hegeman Electric Co. v. FTC 78/1007 (U-5) Atlintic Coast Line RR Co. v. Florida #3UU 79/1U51 ( —5) Florida v. U.S. #3U5 79/1U51 Railroad Retirement Bd. v. Alton RR CO. 79/1U68 (U—5) 237 Carter v. Carter Coal Co. #636 80/1161 (U—5) R. C. Tway Coal Co. v. Glenn #6U9 80/1161 R. C. Tway Coal Co. v. Clark #650 80/1161 Morehead v. New York ex rel. Tipaldo 80/13U7 (U-5) Great Northern Ry CO. v. State of Washington 81/573 (U-5) (exp) 80/688* Hartford Steam Boiler Inspection and Ins. Co. v. Harrison 81/1223 (U-5) Rogers v. Guaranty Trust CO. 77/652 (3-5) Chicago, Rock Island and Pacific Ry CO. v. U.S. 76/177 (3-6) U.S. v. Baltimore and Ohio R Co. 76/2U3 (3—6) ICC v. Oregon-Washington R and Navigation Co. 77/588 (3-6) U.S. v. Dubilier Condenser Corp. 77/111U (3-6) Southern R Co. v. Virginia ex rel. Shirley 78/260 (3- ) Georgia Ry and Electric CO. v. City of Decatur 79/1365 (3-6) Atchison, Topeka and Santa Fe Ry Co. v. U.S. #606 79/1382 (3—6) Union Stock Yard Co. v. U.S. #607 79/1382 West v. Chesapeake and Potomac Telephone Co. 79/l6Uo (3-6) U.S. v. Constantine #UO 80/233 (3-6) U.S. v. Kesterson 80/2Ul (3-6) Mayflower Farms v. Ten Eyck 80/675 (3-6) Jones v. SEC 80/1015 (3-6) (exp) #636 80/ll6l* (exp) #6U9 80/ll6l (exp) #650 80/1161 U.S. g. Elgin, Joliet and Eastern Ry Co. 80/1300 (3- ) (exp) 80/13U7* New State Ice Co. v. Liebmann 76/7U7 (2-6) (exp) 77/652* Nashville, Chattanooga and St. Louis Ry v. Walters 79/9U9 (2-6) Arizona Grocery v. Atchison, Topeka and Santa Fe R Co. 76/3U8 (2-7) Reynolds v. U.S. 78/1353 (2—7) Powell v. U.S. 81/6U3 (1-6) Panama Refining CO. v. Ryan #135 79/UU6 (1-8) Amazon Petroleum Corp. v. Ryan #260 79/UU6 Expansions: 80/688: Br+; Ca+; St+; H-; R+; McR-; VanD—; Su—; Bu— (U—5) 80/1161: Br+; Ca+; St+; H-; R—; McR-; VanD-; Su—; Bu- (3-6) 80/13U7: Br+; Ca+; St+; H—; R-: McR—; VanD—; Su—; Bu- (3-6) 26. 238 77/652: Br+; Ca-: St+; H-; RN; McR-; VanD-; Su-; Bu- (2-6) Results Justice Scale Score Rank Br .91 3 Ca .95 1 St .95 2 H .56 U R .55 5 McR .86 9 f R .95U VanD .82 6 MMR .81U Su .8U 7 - NSR 26 Bu .89 8 Description E - State Tax (n.= 3U; including four expansions and one memorandum case) AO — private business/agents (subject to another government) as objects Of state power AS - federal limitations (XIV amendment due process and equal protection; interstate commerce clause; intergovernment tax immunity) on scope of state tax power Data Lawrence v. State Tax Commission 76/1102 (8-1) Michigan v. Michigan Trust 76/1136 (8-1) (exp) #72U 81/12U5* (exp) #797 81/12U5 New York ex rel. Cohn v. Graves 81/666 (7-2) Henneford v. Silas Mason Co. 81/81U (7-2) Pacific Co. v. Johnson 76/893 (6-3) Life and Casualty Ins. CO. v. McCray 78/987 (6-3) Fox v. Standard Oil of New Jersey 79/780 (5—U) Carmichael v. Southern Coal and Coke Co. #72U 81/12U5 (5-U) Carmichael v. Gulf States Paper Corp. #797 81/12U5 Great Atlantic and Pacific Tea Co. v. Grosjean 81/1193 (U-3) Burnet v. Coronado Oil and Gas CO. 76/815 (U-5) Concordia Fire Ins. Co. v. Illinois 78/1Ull (3-5) Hoeper v. Tax Commission of Wisconsin 76/2U8 (3-6) First National Bank of Boston v. Maine 76/313 (3—6) Anglo Chilean Nitrate Sales Corp. v. Alabama 77/710 (3-6) Liggett Co. v. Lee 77/929 <3-6) (exp) 76/815* 27. 239 Stewart Dry Goods CO. v. Lewis #U5U 79/105U (3-6) Levy v. Lewis #U55 79/105U Penney Co. v. Lewis #U56 79/105U Kroger Co. v. Lewis #U57 79/105U Senior v. Braden 79/1520 (3—6) Schuykill Trust Co. v. Pennsylvania 80/91 (3-6) Colgate v. Harvey 80/299 (3-6) Memo. case: #587 Noble-Trotter Rice Milling Co. Fontenot 80/U02 (3-6) Great Northern Ry.Co. v. Weeks 80/532 (3-6) Graves v. Texas Co. 80/1236 (2—6) Valentine v. Great Atlantic and Pacific Tea CO. #13 81/22 (2-6) Valentine v. Graham Department Stores #lU 81/22 Valentine v. Walgreen Co. #15 81/22 Binney v. Long 81/239 (2—6) (exp) 77/929* Expansions: 8l/l2U5: Br+; Ca+; St+; H+; R+; McR—; VanD+; Su+; Bu+ (8-1) 76/815: Br+; Ca-; St+; H-; R+; McR-; VanD-; Su-; Bu- (3-6) 77/929: Br-; Ca+; St+; H—; R-; McR—; VanD-; Su—; Bu— (2-7) Results Justice Scale Score Rank Br .97 2.5 Ca .97 2.5 St 1.00 l H .66 5 R .61 U McR .9U 9 R .988 VanD .8U 7 MMR .85U Su .82 6 NSR 5 Bu .88 8 Description E - Intergovernmental Tax Immunity Subscale (mix of state/federal and state/state combi- nations) (n = 6, including four duplicates and one expansion) AO property subject to double and/or discriminatory taxation by state AS dimensions of doctrine of immunity in each case 27. 239 Stewart Dry Goods Co. v. Lewis #U5U 79/105U (3-6) Levy v. Lewis #U55 79/105U Penney Co. v. Lewis #U56 79/105U Kroger Co. v. Lewis #U57 79/105U Senior v. Braden 79/1520 (3-6) Schuykill Trust Co. v. Pennsylvania 80/91 (3-6) Colgate v. Harvey 80/299 (3—6) Memo. case: #587 Noble-Trotter Rice Milling Co. v. Fontenot 80/U02 (3—6) Great Northern Ry.Co. v. Weeks 80/532 (3-6) Graves v. Texas Co. 80/1236 (2-6) Valentine v. Great Atlantic and Pacific Tea Co. #13 81/22 (2-6) Valentine v. Graham Department Stores #lU 81/22 Valentine v. Walgreen CO. #15 81/22 Binney v. Long 81/239 (2-6) (exp) 77/929* Expansions: 81/12U5: Br+; Ca+; St+; H+; H+; McR-; VanD+; Su+; Bu+ (8-1) 76/815: Br+; Ca-; St+; H-; H+; McR-; VanD-; Su-; Bu- (3-6) 77/929: Br-; Ca+; St+; H-; R-; McR-; VanD-; Su-; Bu- (2-7) Results Justice Scale Score Rank Br .97 2.5 Ca .97 2.5 St 1.00 l H .66 5 R .61 U McR .9U 9 R .988 VanD .8U 7 MMR .85U Su .82 6 NSR 5 Bu .88 8 Description E - Intergovernmental Tax Immunity Subscale (mix of state/federal and state/state combi- nations) (n = 6, including four duplicates and one expansion) AO - property subject to double and/or discriminatory taxation by state AS — dimensions of doctrine of immunity in each case 2U0 Data Results Justice Scale Score Rank 81/666 Br 1.00 1 76/893 Ca .67 U 76/815 St .80 3 80/1236 H .67 5 (exp) 76/815 R .83 2 81/691* McR .83 7 R .962 VanD .83 7 MMR .828 Su .83 7 NSR 2 Bu 1.00- 9 *Brush v. Commissioner of Internal Revenue not in— cluded in State Tax master scale because involves federal tax. Description E - Fourteen Amendment, Equal Protection Subscale (n = 21, including three expansions; all duplicates) AO - individual or private business asserting discriminatory hence unconstitutional application of state tax AS - state taxation as limited by the XIV amendment, equal protection clause Data Results Justice Scale Score Rank 76/1102 Br .95 3 (exp) #72U Ga 1.00 1.5 81/12U5 St 1.00 1.5 (exp) #797 H .60 U.5 81/12U5 R .62 U.5 78/987 McR .90 9 79/780 R .993 VanD .90 8 #72U; #797 MMR .85U Su .86 6.5 8l/12U5 NSR 2 Bu .86 6.5 81/1193 78/1Ull 76/2U8 77/929 #U5U; #U55; #U56; #U57 79/105U 80/532 #13; #1U; #15 81722 81/239 (eXp) 77/929 29. 30. 2Ul Description E - Chain Store Tax Subscale (n = 7; all duplicates; one expansion) AO — chain store as Object of state regulation of interstate commerce AS - latitude of permissible state policy re taxation Of business within its bounds; economic policy of state; intrastate commerce . Data Results Justice Scale Score Rank i l . 79/780 Br .97 3 , 81/1193 Ca 1.00 1.5 77/929 St 1.00 1.5 #13; #1U; #15 H .71 U.5 81/22 R .71 U.5 (eXp) 77/929 McR 1.00 7.5 R 1.00 VanD 1.00 7.5 MMR .932 Su 1.00 7.5 NSR O Bu 1.00 7.5 Description E - State Regulation (n = 25; one memorandum case; two expansions; all duplicates) AO - private enterprise (railroads, insurance companies, public utilities, dairies) allegedly burdened in its activities by Operation Of state and/or federal (police) powers AS - scope of the police power of government/state regulatory power vis-a—vis XIV amendment guarantees of equal protection and due process Data Results Justice Scale Score Rank 77/288 Br .92 3 78/1160 Ca .96 2 80/220 St 1.00 1 (memo. case) H .56 U 76/500 R .52 5 77/1180 McR .92 8 78/9UO R .975 VanD .83 6.5 79/1070 MMR .83U Su .8U 6.5 80/669 NSR 6 Bu .96 9 81/703 81/835 81/1229 80/l3U7 81/573 31. 32. 81/1223 77/652 78/260 79/1365 79/16UO 80/233 80/2U1 80/675 2U2 (exp) 80/l3U7 76/7U7 (exp) 77/652 3 79/9U9 Description E - A0 — State Regulation of Milk Prices Subscale (n = U; all duplicates) dairies: restriction Of their privilege to engage in business AS - expression of state legislative powers: power to fix prices, require licenses and classify businesses subject thereto Data Results Justice Scale Score Rank 78/9U0 Br 1.00 2 80/669 Ca 1.00 2 81/835 St 1.00 2 80/675 H .85 U.5 R .85 U.5 McR 1.00 7.5 R 1.00 VanD 1.00 7.5 MMR .966 Su 1.00 7.5 NSR 0 Bu 1.00 7.5 Description E - State Police Power and Regulation of Public Utilities via Commissions (n = 6; all dupli— cates) AO - business company challenging mode of regulation by state commission AS - state power to regulate public utilities or other private enterprise under XIV amendment limitations 31. LA) (\) 81/1223 77/652 78/260 79/1365 79/16Uo 80/233 80/2Ul 80/675 2U2 (exp) 80/13U7 76/7U7 (exp) 77/652 79/9U9 Description E - State Regulation of Milk Prices Subscale (n = U; all duplicates) AO - dairies: restriction of their privilege to engage in business AS - expression of state legislative powers: power to fix prices, require licenses and classify businesses subject thereto Data Results Justice Scale Score Rank 78/9UO Br 1.00 2 80/669 Ca 1.00 2 81/835 St 1.00 2 80/675 H .85 U.5 R .85 U.5 McR 1.00 7.5 R 1.00 VanD 1.00 7.5 MMR .966 Su 1.00 7.5 NSR 0 Bu 1.00 7.5 Description E - State Police Power and Regulation of Public Utilities via Commissions (n = 6; all dupli- cates) AO - business company challenging mode of regulat by state commission AS — state power to regulate public utilities or other private enterprise under XIV amendment limitations .1- 131’1 33. 3U. 2U3 Data Results Justice Scale Score Rank 77/1180 Br .67 3 78/260 Ca 1.00 1.5 79/1365 St 1.00 1.5 79/16UO H .67 U 76/7U7 R .83 5.5 79/9U9 McR .80 5.5 R .98 VanD 1.00 8 MMR .885 Su 1.00 8 NSR 1 Bu 1.00 8 Description E - State Provisions for Labor (n = U; one expansion; all duplicates) AO - laborer whose protection is provided for by positive enactment of state legislation AS - limitations on state power (chiefly, its police power) imposed by XIV amendment (due process and equal protection, here seen as guarantees of right to work and freedom of contract) Data Results Justice Scale Score Rank 81/703 Br 1.00 2 81/1229 Ca 1.00 2 80/13U7 St 1.00 2 (exp) 80/13U7 H .75 U R .50 5 McR 1.00 7.5 R 1.00 VanD 1.00 7.5 MMR .916 Su 1.00 7.5 NSR 0 Bu 1.00 7.5 Description E - State Regulation of Foreign Corporations (n = 7; one expansion; all duplicates) AO — foreign corporation negatively acted upon by host state's laws AS - scope of state regulatory power upon business activities within its geographic bounds 35. 2UU Data Results Justice Score Rank 78/1160 Br .00 1.5 80/220 Ca .86 3 76/500 St .00 1.5 79/1070 H .71 U 81/573 R .80 5 77/652 McR .oo 9 (exp) 77/652 R 1.00 VanD .57 6.5 MMR .818 Su .57 6.5 NSR 0 Bu .86 8 Description E - Commerce Regulation (n = 16; four expansions; all duplicates) AO - corporate challenge (corporation or stock— holder) to federal statutory regulation or to federal activity statutorily sanctioned AS - congressional determination (through specifically delegated authority) of scope of federal commerce power Data Results Justice Scale Score Rank 80/688 Br .88 2.5 #U19 81/893 Ca 1.00 1 (exp) #U20—2l St .88 2.5 (exp) #U22-23 H .63 U 81/953 R .63 5 (exp) 80/688 McR 1.00 9 79/1U68 R .991 VanD .9U 7 #636; #6U9; MMR .871 Su .9U 7 #650 80/1161 NSR 1 Bu .9U 7 81/573 (exp) #636 80/1161 (exp) #6U9 (exp) #650 #135; #260 79/UU6 Description E — Interstate Commerce Commission (ICC) (n = 13; all duplicates) 37. 2U5 AO - a business enterprise (railroads, transit companies, stockyards, carriers) subject to orders of ICC AS — employment of regulatory powers by ICC (reparations, rate prescriptions, investiga- tion) Data Results Justice Scale Score Rank 81/1186 Br 1.00 l , 76/118U Ca .80 2 77/2U8 St .92 3 #3UU; #3U5 79/1U51 H .58 U 77/1U10 R .62 5 #606; #607 79/1382 McR .85 7 »| 77/588 R .98 VanD .85 7 76/177 MMR .83 Su .85 7 76/2U3 NSR 2 Bu 1.00 9 76/3U8 81/6U3 Description E — Contracts (private; insurance); Bonds; Contract Systems (n = 10; one duplicate) AO - parties to contract, generally involving insurance policies AS - nature of bond in insurance contracts generally or nature of a contract Data (dup) 81/659 American Surety CO. of New York v. Westinghouse 80/105 (8-1) American Surety CO. v. Greek Catholic Union 76/U90 (7-1) St. Paul Fire and Marine Insurance v. Bachmann 76/6U8 (7-1) Holyoke Water Power v. American Paper 81/678 (5—U) Sanders v. Armour Fertilizer Works 78/1206 (U-5) Dugas v. American Surety CO. 81/720 (2—6) Washington Fidelity Insurance v. Burton 77/197 (2-7) Travelers Protective Association v. Prinsen 78/999 (1-8) Landress v. Phoenix Mutual Life 78/93U (1-8) 39. 2U6 Results Justice Scale Score Rank Br .70 3.5 Ca .75 2 St .89 1 H .70 3.5 R .60 5 McR .80 9 R .971 VanD .60 6.5 MMR .7OU Su .70 8 NSR U Bu .60 6.5 Description E - Insurance Contract Subscale (n = 5; all duplicates) A0 - status of insurer/insured respectively (re a policy's contract) AS - nature of bond in insurance contracts Data Results Justice Scale Score Rank 79/U9O Br .60 2 76/6U8 Ca (missing data) 77/197 St .80 1 78/999 H .60 5 78/93U R .60 5 McR 1.00 8 R 1.00 VanD .60 5 MMR .67U Su .60 5 NSR O Bu .60 5 Description E - Noninsurance Contract Subscale (n = 5; all duplicates) AO - status of respective contracting parties AS - nature of bond in given contract Data Results Justice Scale Score Rank 81/659 Br .80 U 80/105 Ca 1.00 2 81/678 St 1.00 2 78/1206 H 1.00 2 81/720 R .60 6.5 McR .60 6.5 R .961 VanD .60 6.5 MMR .777 Su .80 9 NSR 2 Bu .60 6.5 U0. U1. 2U7 Description E Contract Clause in Federal/State Constitutions (n = 8; all duplicates; one expansion) A0 - contracting party seeking to maintain sanctity of contract AS - legislative action (state/federal) as limited by and/or violative of, the contract clause (U.S. Constitution/XIV amendment, due process, equal protection) or comparable clause in state constitutions Data Results Justice Scale Score Rank I9 76/893 Br .88 2.5 79/907 Ca .88 2.5 79/912 St 1.00 l 78/Ul3 H .63 U 80/1309 R .50 5 76/866 McR .88 6 81/239 R 1.00 VanD 1.00 8 (exp) 79/912 MMR .863 Su 1.00 8 NSR O Bu 1.00 8 Description E - Gold Clause Cases (n = 7; 1 duplicate; one expansion) AO - rights of contracting parties regarding medium of payment AS - congressional power over monetary system in view of Obligation imposed by gold clause Of contracts public and private Data Norman v. B and 0 RR #270 79/885 (5-U) U.S. V. Bankers Trust #U7l; U.S. v. Bankers Trust #U72 79/885 Nortz v. U.S. 79/907 (5-“) Perry v. U.S. 79/912 (5-“) (dup) 81/678 (exp) 79/912 Expansion: Br-; Ca-; St+; H-; R-; McR-; VanD—; Su-; Bu- (1-8) 2U8 Results Justice Scale Score Rank Br .86 3.5 Ca .86 3.5 St 1.00 l H .86 3.5 R .86 3.5 McR 1.00 7.5 R 1.00 VanD 1.00 7.5 MMR .937 Su .1.00 7.5 NSR O Bu 1.00 7.5 Description E - Antitrust (n = 6; all duplicates) AO - business sanctioned by federal law for monopolistic activity AS - power of Congress to regulate business combina- tions having monopolistic aspects (restraints U3. of trade and commerce; subsidiaries) Data Results Justice Scale Score Rank 77/825 Br 1.00 2 #568; #569; Ca 1.00 2 #570 76/999 St 1.00 2 78/1007 H .67 U 80/1300 R .58 5 McR .50 6 R 1.00 VanD .83 8.5 MMR .786 Su .67 7 NSR l Bu .83 8.5 Description E - Federal Government Regulatory/Administrative Agencies (n = 10; all duplicates, including one expansion) AO - litigant (stockholder, government employee, individual, corporation) affected or negatively sanctioned by government agency, claiming its action as ultra vires AS - permissible powers (e.g., investigation, jurisdiction, contract) of federal agencies in their respective areas of regulation 2U9 Data Results Justice Scale Score Rank 81/659 Br .80 3 77/796 Ca 1.00 1.5 80/688 St 1.00 1.5 77/706 H .70 U 80/5U R .60 7.5 78/1007 McR .80 9 (exp) 80/688 R .952 VanD .50 5.5 80/1015 MMR .733 Su .70 7.5 77/111U NSR U Bu .50 5.5 78/1353 Description E - Liability (n = 7; one duplicate) AO - claim of contractee (business or employee) against loss or injury AS - extent Of liability (vessel or carrier) for damages incurred during period of transactions under contract; proven negligence as deter- mining liability Data Alexander v. Kellogg and Sons #UUU 76/903 (7-1) Rocco v. Lehigh Valley R CO. 77/7U3 (7-2) May v. Hamburg-American P. Aktiengesellschaft 78/3U8 (7-2) Krauss Lumber CO. v. Dimon SS Corp. 78/216 (5-U) Crowell v. Benson 76/598 (3-5) (exp) 76/903* (dup) 81/720 *76/903: Br+; Ca N; St+; H-; R—; McR-; VanD-; Su—; Bu- (2-6) Results Justice Scale Score Rank Br .86 3 Ca 1.00 1.5 St 1.00 1.5 H .71 U R .57 5.5 McR .86 8.5 R .976 VanD .57 5.5 MMR .793 Su .71 7 NSR 3 Bu .86 8.5 250 U5. Description E — Bankrupt (n = 3) A0 - insolvent corporation's position vis-a-vis creditors; receivers AS — state/federal laws providing for respective rights of bankrupts and creditors Data McCandless v. Furland 80/121 (5—U) Ashton v. Cameron County Water Improvement District 80/1309 (U-5) Dakin v. Bayly 78/229 (1—8) Results Justice Scale Score Rank Br .67 3 Ca .67 3 St 1.00 1 H .67 3 R 1.00 7.5 McR 1.00 7.5 R 1.00 VanD .67 5 MMR .853 Su 1.00 7.5 NSR O Bu 1.00 7.5 F Scale Set (N = 11 scales) U6. Description F - Federal Taxation of Gifts (n = 8) A0 - beneficiaries by inheritance/succession AS - propriety of application of federal tax power (via Revenue Acts 1921; 192U; 1926) to gifts of decedents or to charitable gifts; also taxation of gifts in contemplation of death Data Burnet v. Brooks 77/8UU (8-1) Burnet v. Guggenheim 77/78U (6-2) Old Mission Portland Cement Co. v. Helvering 79/267 (7-2) Gulf, Mobile and Northern RR Co. v. Helvering 79/372 (7—2) 1 U7. 251 Helvering v. St. Louis Union Trust 80/29 (U—5) Becker v. St. Louis Union Trust 80/35 (U-5) Heiner v. Donnan 76/772 (2-6) Handy v. Delaware Trust 76/793 (2—6) Results Justice Scale Score Rank Br 1.00 2 Ca 1.00 2 St 1.00 2 H .71 U R .75 8 McR .50 5.5 R .983 VanD .50 5.5 MMR .787 Su .63 7 NSR 1 Bu 1.00 9 Description F - Combined State/Federal Tax Scales: E Scale State Tax and F Scale Federal Tax (n = 75; eight duplicates; six expansions; one memorandum case) A11 A08 and A88 here are those from E—State Tax; F-Federal Tax Master Scale; and F—Federal Taxation of Gifts Scale respectively Data Lawrence v. State Tax Commission 76/1102 (8-1) Helvering v. Pardee #77 78/365 (8-1) (exp) 81/1279* Michigan v. Michigan Trust 76/1136 (8-1) (exp) #72U 81/12U5* (exp) #797 Helgering v. Independent Life Insurance 78/1311 ( -l) Helvering v. Midland Mutual Life 81/162 (8-1) Anniston Manufacturing Co. v. Davis 8l/llU3 (8—1) Stone v. White 81/1265 (8-1) U.S. ex rel. Girard Trust v. Helvering 81/1272 (8-1) (dup) 77/8UU (dup) 79/367 (dup) 79/372 New York ex rel. Cohn v. Graves 81/666 (7—2) Henneford v. Silas Mason Co. 81/8lU (7-2) (exp) 81/1279* Helvering v. Davis 81/1317 (7—2) (dup) 77/78U U.S. v. Safety Car Heating and Light Co. #75 80/500 (6-3) “7. 251 Helvering v. St. Louis Union Trust 80/29 (u_5) Becker v. St. Louis Union Trust 80/35 (U-S) Heiner v. Donnan 76/772 (2—6) Handy v. Delaware Trust 76/793 (2-6) Results Justice Scale Score Rank Br 1.00 2 Ca 1.00 2 St 1.00 2 H .71 L) R .75 8 McR .50 5.5 R .983 VanD .50 5.5 MMR .787 Su .63 7 NSR 1 Eu 1.00 9 Description F - Combined State/Federal Tax Scales: E Scale State Tax and F Scale Federal Tax (n = 75; eight duplicates; six expansions; one memorandum case) All AOs and ASs here are those from E-State Tax; F-Federal Tax Master Scale; and F-Federal Taxation of Gifts Scale respectively Data Lawrence v. State Tax Commission 76/llO2 (8—l) Helvering v. Pardee #77 78/365 (8-l) (exp) 81/1279* Michigan v. Michigan Trust 76/1136 (8—1) (exp) #72“ 81/l2u5* (exp) #797 Helgering v. Independent Life Insurance 78/1311 ( -1 Helvering v. Midland Mutual Life 81/162 (8—l) Anniston Manufacturing Co. v. Davis 8l/llu3 (8-l) Stone v. White 81/1265 (8-1) U.S. ex rel. Girard Trust v. Helvering 81/1272 (8-1) (dup) 77/84u (dup) 79/367 (dup) 79/372 New York ex rel. Cohn v. Graves 81/666 (7—2) Henneford V. Silas Mason Co. 81/814 (7-2) (exp) 81/1279* Helvering v. Davis 81/l3l7 (7-2) (dUp) 77/78U U.S. v. Safety Car Heating and Light Co. #75 80/500 (6-3) 252 Rogers v. Safety Car Co. #76 80/500 Pacific Co. v. Johnson 76/893 (6-3) Burnet v. Wells 77/1439 (5-A) Fox v. Standard Oil of New Jersey 79/780 (S—A) Helvering v. City Bank Farmers Trust 80/62 (5-4) Carmichael v. Southern Coal and Coke Co. #724 81/12h5 (S-U) Carmichael v. Gulf States Paper Corp. #797 81/1245 Steward Machine Co. v. Davis 8l/l279 (5-4) Great Atlantic and Pacific Tea Co. v. Grosjean 8l/ll93 (u-3) Burnet v. Coronado Oil and Gas 76/815 (A-5) (dup) 80/29 (dup) 80/35 Concordia Fire Insurance Co. v. Illinois 78/lull (3-5 Hoeper v. Tax Commission of Wisconsin 76/2A8 (3—6) First National Bank of Boston v. Maine 76/313 (3-6) Anglo—Chilean Nitrate Sales Corp. v. Alabama 77/710 (3—6) Liggett Co. v. Lee 77/929 (3-6) (exp) 76/815* Helvering v. New York Trust #873 78/1361 (3-6) New York Trust v. Helvering #899 78/1361 Freuler v. Helvering 78/634 (3-6) Whitcomb v. Helvering 78/6u5 (3-6) Stewart Dry Goods Co. v. Lewis #M5U 79/lO5H (3-6) Levy v. Lewis ##55 79/105u Penney Co. v. Lewis ##56 79/1054 Kroger Co. v. Lewis #A57 79/lO5A Senior v. Braden 79/1520 (3-6) McFeely v. Comm'r of Internal Revenue #2A 80/83 (3-6) U.S. v. First National Bank of Boston #110 80/83 Helvering v. Lee #111 80/83 Rand v. Helvering ##39 80/83 Dibblee v. Comm'r of Internal Revenue #ugu 80/83 Schuykill Trust Co. v. Pennsylvania 80/91 (3-6) U.S. v. Constantine 80/233 (3-6) U.S. v. Kesterson 80/2Hl (3-6) Colgate v. Harvey 80/299 (3-6) Memo. case: #587 Noble—Trotter Rice Milling Co. v. Fontenot 80/U02 U.S. v. Butler 80/A77 (3—6) Great Northern Ry Co. v. Weeks 80/532 (3-6) Milleg v. Standard Nut Margarine Co. #251 76/U22 (2- ) Rose v. Standard Nut Margarine Co. of Florida #252 76/“22 (dup) 76/772 (dup) 76/793 Graves v. Texas Co. 80/1236 (2—6) Valentine V. Great Atlantic and Pacific Tea Co. #13 81/22 (2-6) 253 Valentine v. Graham Department Stores #14 81/22 Valentine v. Walgreen Co. #15 8l/22 Binney v. Long 81/239 (2-6) (exp) 77/929* U.S. v. Murdock 78/381 (2-7) Koshland v. Helvering 80/1268 (2-7) Thomas v. Perkins 81/1324 (2-7) Brush v. Comm'r of Internal Revenue 8l/69l (2—7) Helvering v. Taylor 79/623 (1-8) Helvering v. Rankin 79/13u3 (l-8) Expansions: 81/1279: Br+; Ca+; St+; H+; R+; MCR+; VanD+; Su+; Bu~ (8—1) 8l/l2U5: Br+; Ca+; St+; H+; R+; McR-; VanD+; Su+; Bu+ (8-l) 81/1279: Br+; Ca+; St+; H+; H+; McR-; VanD+; Su+; Bu- (7-2) 76/815: Br+; Ca-: St+; H-; R+; McR-; VanD—; Su-; Bu- (3-6) 77/929: Br-; Ca+; St+; H-; R-; McR-; VanD-; Su-; Bu- (2-7) Results Justice Scale Score Rank Br .92 3 Ca .91 ‘2 St .99 l H .60 A R .63 5 McR .8“ 8 R .96u VanD .73 6 MMR .805 . Su .76 7 NSR 28 Bu .87 9 Description F a Federal Tax Cases involving Statutory Con- struction (n = 35; all duplicates) AO - taxpayer challenge based on specific ' ‘application of federal tax statute AS - intent of Congress as expressed in statute so challenged 25A Data Results Justice Scale Score Rank 77/8UH Br .89 78/365 Ca .87 78/1311 St 1.00 81/162 H .59 81/1193 R .71 81/1265 MGR .74 81/1272 R .968 VanD .66 79/367 MMR .781 Su .74 79/372 NSR 12 Bu .83 #75; #76 80/500 77/7U8 77/1439 80/62 80/29 80/35 #873; #899 78/1361 78/63u 78/645 #24; #110; #111; ##94 80/83 80/233 80/2Ul #251; #252 76/u22 76/772 76/793 80/1218 81/132A 76/623 79/1343 CDNWOkO-ti—‘NLU Description F - Federal Tax Cases involving Constitutional Challenge (n = 18; all duplicates, including two expansions) A0 - taxpayer challenge to congressional deter- mination of constitutional scope of federal tax power AS - the constitutional boundaries of the federal tax power: latitude constitutionally sanctioned 50. 255 Data Results Justice Scale Score Rank 77/844 Br .94 1 (exp) 81/1279 Ca .93 2.5 (exp) 81/1279 St .94 2.5 81/1307 H .61 5 #75; #76 80/500 R .61 4 81/1279 McR .78 8 76/815 R .957 VanD .67 6 80/233 MMr .806 Su .78 7 80/241 NSR 6 Bu 1.00 9 80/402 80/477 #251; #252 76/422 76/772 76/793 78/381 81/691 Description E - State Tax Cases involving Statutory Con- struction (n = 13; all duplicates) A0 - taxpayer challenge based on specific application of state tax statute (tends to be a question of legitimacy of inclusion) AS — clarification/intent of state legislature in statutes so challenged Data Results Justice Scale Score Rank 76/1136 Br 1.00 2 79/780 Ca 1.00 2 78/1411 St 1.00 2 76/248 H .83 4.5 77/710 R .85 4.5 #454; #455; #456; McR 1.00 9 #457 79/1054 R 1.00 VanD .92 7 80/91 MMR .937 Su .92 7 80/299 NSR o Bu .92 7 80/1236 81/239 I' 256 5l. Description E - State Tax Cases involving Constitutional Challenge (n = 30; all duplicates; four expansions) A0 - taxpayer challenge to state legislative determination of constitutional scope of state tax power AS - the constitutional boundaries of the state tax power; latitude constitutionally sanc- tioned (within both state police power and federal constitutional limitations) Data Results Justice Scale Score Rank 76/1102 Br .97 3 ‘ (exp) #724 81/1245 Ca .96 1.5 (exp) #797 St 1.00 1.5 81/666 H .66 5 81/814 R .60 4 76/893 McR .93 9 #724; #797 R .986 VanD .86 7 81/1245 MMR .856 Su .83 6 79/780 NSR 4 Bu .90 8 81/1193 76/815 78/1411 76/248 76/313 77/710 77/929 (exp) 76/815 #454; #455; #456; #457 79/1054 79/1520 80/299 80/532 80/1236 #13; #14; #15 81/22 81/239 (exp) 77/929 52. Description F - Federal Taxation Master Scale (n = 44; all duplicates; two expansions) 256 1. Description E - State Tax Cases involving Constitutional Challenge (n = 30; all duplicates; four expansions) A0 — taxpayer challenge to state legislative determination of constitutional scope of state tax power AS - the constitutional boundaries of the state tax power; latitude constitutionally sanc— tioned (within both state police power and federal constitutional limitations) Data Results Justice Scale Score Rank 76/1102 Br .97 3 ) (exp) #724 81/1245 Ca .96 1.5 (exp) #797 St 1.00 1.5 81/666 H .66 5 81/814 R .60 4 76/893 McR .93 9 #724; #797 R .986 VanD .86 7 81/1245 MMR .856 Su .83 6 79/780 NSR 4 Bu .90 8 81/1193 76/815 78/1411 76/248 76/313 77/710 77/929 (exp) 76/815 #454; #455; #456; #457 79/1054 79/1520 80/299 80/532 80/1236 #13; #14; #15 81/22 81/239 (exp) 77/929 52. Description F - Federal Taxation Master Scale (n = 44; all duplicates; two expansions) 257 A0 - assessed private property owner (chiefly succession tax, income tax, tax on lease) or state instrumentality AS - scope of tax power U.S. (as defined in Revenue Acts), given other constitutional limitations (V amendment, due process; XVI amendment) Data Results Justice Scale Score Rank 78/365 77/844 Br .89 (exp) 81/1279 Ca .88 78/1311 St .98 81/162 H .59 81/1143 R .64 81/1265 'McR .78 81/1272 R .956 VanD .67 79/367 MMR .776 Su .73 79/372 NSR 21 Bu .87 (exp) 81/1279 81/1307 77/748 #75; #76 80/500 77/1439 80/62 81/1279 80/29 80/35 76/815 #873; #899 78/1361 78/634 78/645 #24; #110; #111; #439; #494 80/83 80/233 80/241 80/402 80/477 #251; #252 76/422 76/772 76/793 81/691 78/381 80/1268 81/1324 79/623 79/1343 \ONONCDU'l-lri—JNUU ,— h / l 54. 258 Description F - Revenue Acts 1921 and 1928 Subscale (n = 16; all duplicates) A0 - taxpayer challenging federal collection of income tax ASl- federal tax power as operationalized in Revenue Act of 1921 AS2- federal tax power as operationalized in Revenue Act of 1928 Data Results Justice Scale Score Rank 78/1311 Br .94 3 81/612 Ca .88 2 81/1265 St 1.00 1 79/367 H .69 5 79/372 R .75 9 78/634 McR .81 7 78/645 R .965 VanD .69 5 78/719 MMR .806 Su .69 5 #873; #899 NSR 6 Bu .81 8 78/1361 #24; #110; #lll; #439; #494 80/83 80/1268 Description F — Federal Tax for Reasons of Social Policy (n = 12; all duplicates, expansions) including two A0 - taxpayer (generally a corporation or stock— holder) challenging legitimacy/constitution- ality of tax assessed in terms of power to enact and/or ultimate purpose AS - permissible scope of the federal tax power in a federal system Data Results Justice Scale Score Rank 81/1143 Br 1.00 2 (exp) 81/1279 Ca 1.00 2 (exp) 81/1279 St 1.00 2 81/1307 H .58 5 81/1279 R .50 4 76/815 McR .92 8.5 80/233 R 1.00 VanD .67 6.5 80/241 MMR .806 Su .67 6.5 80/402 NSR 1 Bu .92 8.5 ‘07 80/477 #251; # 76/42 259 252 2 Description F .. Federal Taxation involving Testamentary Trusts (n = 19; all duplicates) A0 — testamentary trust (as well as testator— trustee-beneficiary relationships involved) as object of federal tax power AS - extent of federal tax power over property rights of this nature Data Results Justice Scale Score Rank #77 78/365 Br 1.00 1.5 81/1265 Ca .88 3 77/748 St 1.00 1.5 77/1439 H .72 5 80/62 R .68 4 80/29 McR .84 6.5 80/35 R .973 VanD .84 6.5 #873; #899 MMR .86 Su .89 8.5 78/1361 NSR 6 Bu .89 8.5 78/634 78/645 78/719 #24; #110; #111; #439; #494 80/83 76/772 76/793 Description F - Federal Taxation involving Tax Refunds, Discounts, Permissible Deductions (n = 17; all duplicates, including two expansions) A0 - assessed taxpayer (individual, corporation) contending against prior collection of taxes as inequitab1e/inva1id/erroneous or for a deduction claimed AS - merits attaching to suit for recovery of taxes from the federal government or to suit to sustain deduction claimed 260 Data Results Justice Scale Score Rank #77 78/365 Br .94 3 (exp) 81/1279 Ca 1.00 1.5 78/1311 St 1.00 1.5 81/1143 H .71 4 81/1265 R .65 9 81/1272 McR .53 6 79/367 R .969 VanD .65 5 79/372 MMR .746 Su .53 7 (exp) 81/1279 NSR 7 Bu .71 8 #75; #76 80/500 81/1279 80/35 78/719 ” 76/772 7 76/793 1 ' 81/1324 260 Data Results Justice Scale Score Rank #77 78/365 Br .94 3 (exp) 81/1279 Ca 1.00 1.5 78/1311 St 1.00 1.5 81/1143 H .71 4 81/1265 R .65 9 81/1272 McR .53 6 79/367 R .969 VanD .65 5 79/372 MMR .746 Su .53 7 (exp) 81/1279 NSR 7 Bu .71 8 #75; #76 80/500 81/1279 80/35 78/719 76/772 76/793 81/1324 261 II. Thirty-Seven Variable Sets J Scale Set (N = 4 scales) J - Jurisdiction: same* J - State Jurisdiction: same J - Federal Jurisdiction: same (URJH 4. Description J - Combined J-Full Faith and Credit and J and C Federal (n = 18) A0 - Supreme Court's position as umpire within the 4 federal system (both of courts and of states) AS - the boundaries of competent Judgment as defined by the constitutional provision of full faith and credit and as given by assigned Juridsiction, for the courts and for the states Data Results Justice Scale Score Rank 76/356 (8-1) 79/1100 (8—1) 5: 'E? g 77/“13 (8'1) St .9“ 1 78/484 (8-1) H '61 A 80/9 (8-1) R .56 6 78/1160 (8-1) McR :89 9 ggjggg (7-2) R .988 VanD .56 6 ’ MMR .709 Su .56 6 80/220 (7‘2) NSR 5 Bu .67 8 81/843 (7-2) 78/1206 (4_5) 76/1054 (3-6) 77/212 (2—7) 77/260 (2—7) 77/439 (2—7) 78/269 (2-7) 77/1148 (2—7) 79/1546 (1e8) C Scale Set (N = 9 scales) 5. C - Master: same 1 "Same" indicates that the scale is identical to the corresponding one in the fifty—six variable sets. (I) 262 Description C - Combined C—State and C—Procedural (n = 21) A0 - persons denied non-economic and/or procedural rights under application of federal or state law AS - Court as guarantor of supremacy of federal constitutional guarantees or such procedural, non-economic rights due the individual Data Results Justice Scale Score Rank 76/356 (8—1) Br .71 3 77/413 (8—1) Ca 1.00 1.5 78/484 (8-1) St 1.00 1.5 #98; #99; #100 H .67 4 77/159 (7-2) R .57 5 78/369 (7-2) McR .86 9 81/843 (7-2) R .950 VanD .52 6 78/315 (6-3) MMR .755 Su .57 7 81/78 (5-3) NSR 8 Bu .90 8 78/674 (5-4) 76/984 (5-4) 81/1066 (5-4) 77/131 (4-5) 79/603 (4-5) 76/1054 (3-6) 79/1530 (3-6) 77/212 (2-7) 77/260 (2-7) 77/439 (2-7) 78/381 (2-7) C - Jury Trial: same Description C - Combined C—Due Process/Subconstitutional Fair Procedure and C-Substantive (n = 22) A0 - persons deprived of non—economic and/or pro- cedural rights by state/federal law AS - Supreme Court as rendering definitive interpre- tation of relevant statutory or constitutional provisions 262 Description C - Combined C-State and C-Procedural (n = 21) A0 - persons denied non-economic and/or procedural rights under application of federal or state law AS - Court as guarantor of supremacy of federal constitutional guarantees or such procedural, non-economic rights due the individual Data Results Justice Scale Score Rank 76/356 (8-1) Br .71 3 77/413 (8-1) Ca 1.00 1.5 78/484 (8-1) St 1.00 1.5 #98; #99; #100 H .67 4 ) 77/159 (7-2) R .57 5 78/369 (7-2) McR .86 9 81/843 (7—2) R .950 VanD .52 6 78/315 (6-3) MMR .755 Su .57 7 81/78 (5-3) NSR 8 Bu .90 8 78/674 (5-4) 76/984 (5-4) 81/1066 (5—4) 77/131 (4—5) 79/603 (4-5) 76/1054 (3-6) 79/1530 (3-6) 77/212 (2-7) 77/260 (2-7) 77/439 (2-7) 78/381 (2-7) C - Jury Trial: same Description C - Combined C—Due Process/Subconstitutional Fair Procedure and C—Substantive (n = 22) A0 - persons deprived of non-economic and/or pro- cedural rights by state/federal law AS - Supreme Court as rendering definitive interpre- tation of relevant statutory or constitutional provisions 263 Data Results Justice Scale Score Rank 77/413 (8-1) Br .77 3 78/484 (8-1) Ca 1.00 1.5 76/843 (7—1) St 1.00 1.5 76/356 (8-1) H .68 5 78/968 (8— 1) R .68 4 #98; #99; #100 McR .82 9 77/159 (7- 2) R .966 VanD .57 6 78/369 (7-2) MMR .764 Su .50 7 81/843 (7-2) NSR 6 Bu .86 8 78/315 (6—3) 81/78 (5-3) 77/64 (6-2) 76/984 (5—4) 81/1066 (5-4) 77/131 (4-5) 76/1054 (3-6) 79/1530 (3- 6) 77/212 (2- 7) 77/260 (2- 7) 77/439 (2- 7) 78/381 (2- 7) Description C - Combined C—Statutory Construction and C-Federal Substantive (n = 15) A0 - persons denied non-economic, civil rights through operation of state/federal statutes AS — determination of meaning of statute in instant case, and of statute's conformity to given con— stitutional guarantees Data Results Justice Scale Score Rank 77/413 (8—1) Br .73 3 78/484 (8-1) Ca 1.00 1.5 76/843 (7-1) St 1.00 1.5 78/968 (8-1) H .67 5 81/843 (7-2) R .67 4 78/315 (6— 3) McR .80 9 77/64 (6— 2) R .948 VanD .50 6 81/78 (5- 3) MMR .752 Su .60 7 76/984 (5-4) NSR 5 Bu .80 8 81/1066 (5-4) 77/131 (4-5) 79/1530 (3-6) 77/212 (2—7) 77/260 (2-7) 78/381 (2-7) Data Results Justice Scale Score Rank 77/413 (8-1) Br .77 3 78/484 (8-1) Ca 1.00 1.5 76/843 (7-1) St 1.00 1.5 76/356 (8-1) H .68 5 78/968 (8-1) R .68 4 #98; #99; #100 McR .82 9 77/159 (7—2) R .966 VanD .57 6 78/369 (7-2) MMR .764 Su .50 7 81/843 (7-2) NSR 6 Bu .86 8 78/315 (6-3) 81/78 (5—3) 77/64 (6-2) 76/984 (5—4) 81/1066 (5-4) 77/131 (4—5) 76/1054 (3—6) 79/1530 (3-6) 77/212 (2-7) 77/260 (2-7) 77/439 (2-7) 78/381 (2-7) Description C - Combined C—Statutory Construction and C—Federal 263 Substantive (n = 15) A0 - persons denied non-economic, civil rights through operation of state/federal statutes .- AS — determination of meaning of statute in instant case, and of statute's conformity to given con— stitutional guarantees Data Results Justice Scale Score Rank 77/413 (8-1) Br .73 3 78/484 (8-1) Ca 1.00 1.5 76/843 (7-1) St 1.00 1.5 78/968 (8—1) H .67 5 81/843 (7-2) R .67 4 78/315 (6-3) McR .80 9 77/64 (6-2) R .948 VanD .50 6 81/78 (5-3) MMR .752 Su .60 7 76/984 (5-4) NSR 5 Bu .80 8 81/1066 (5—4) 77/131 (4-5) 79/1530 (3-6) 77/212 (2-7) 77/260 (2-7) 78/381 (2-7) E Scale Set (N = 264 Constitutional Interpretation: same Federal Constitutional Interpretation: Combined C—State Substantive and C—State Statutory Construction: same as these two separate scales were identical, therefore are merged here State Constitutional Interpretation: same S ame l7 scales) 14. 15. 16. 17. 18. 19. E - Regulation State/Federal: same E - State Tax: same E - Intergovernmental Tax Immunity: same E — Fourteenth Amendment, Equal Protection: same Description E - Combined E-Chain Store Tax and E-Contract Clause and E—Regulation of Milk Prices (n = 19) A0 - private business enterprise or some aspect of commercial negotiations subject to govern- mental (state or federal) intervention or regulation AS - the limits of governmental legislative power in areas affected Data Results Justice Scale Score Rank 76/893 (6-3) Br .89 3 78/413 (5-4) Ca .95 2 78/940 (5-4) St 1.00 1 79/780 (5-4) H .53 4 79/912 (5-4) R .53 5 80/669 (5—4) McR .95 6 81/678 (5—4) R 1.00 VanD 1.00 8 81/835 (5-4) MMR .872 Su 1.00 8 81/1193 (4-3) NSR 0 Bu 1.00 8 80/1309 (4-5) 76/866 (3-6) 77/929 (3-6) 80/675 (3-6) #13; #14; #15 81/22 (2-6) 81/239 (2-6) (exp) 77/929 (2-7) (eXp) 79/912 (1-8) E - State Regulation: same 21. 265 Description E - Combined E-Police and E-Labor (n = 10) A0 - object of state regulation/protection—— laborer or business AS - state regulatory power under XIV amendment limitations Data Results Justice Scale Score Rank 77/1180 (6-2) Br .80 3 81/703 (5-4) Ca 1.00 1.5 81/1229 (5-4) St 1.00 1.5 80/1347 (4-5) H .50 4 78/260 (3-6) R .70 5 79/1640 (3—6) McR .89 6 (exp) 80/1347 R .988 VanD 1.00 8 (3-6) MMR .877 Su 1.00 8 76/747 (2—6) NSR 1 Bu 1.00 8 79/949 (2-6) Description E - Combined E—Foreign Corporation and E-Commerce Regulation (n = 22) A0 - the corporation: as challenger of federal statutory regulation or protestant against alleged discrimination, by host state, towards foreign corporations AS - congressional determination of scope of federal commerce power (as statutorily expressed); also, scope of state regulatory power upon extrastate businesses within its jurisdiction; in either case, regulation of corporation as exercise of power to regulate commerce Data Results Justice Scale Score Rank 78/1160 (8-1) Br .91 2.5 80/688 (8—1) Ca .95 1 76/500 (7-2) St .91 2.5 80/220 (7-2) H .64 4 79/1070 (5—4) R .52 5 #419; #420-21; McR 1.00 9 #422—23 R .981 VanD .82 6.5 81/893 (5-4) MMR .831 Su .82 6.5 81/953 (4-5) NSR 2 Bu .91 8 (exp) 80/688 (4-5) 266 79/1468 (4-5) #636; #649; #650 80/1161 (4-5) 81/573 (4—5) 77/652 (3-5) (exp) #636; #649; #650 80/1161 (3-6) (exp) 77/652 (2—6) #135; #260 79/446 (1-8) 22. E - ICC: same 23. E - Contracts; Bonds; Contract Systems: same 24. E - Insurance Contracts: same 25. E - Noninsurance Contracts: same 26. E - Gold Clause: same 27. E — Antitrust: same 28. E - Government Agency: same 29. E - Liability: same 30. E — Bankrupt: same F Scale Set (N = 7 scales) 31. F - Federal Taxation of Gifts: same 32. F - Combined E and F Tax: same 33. Description F - Combined E-State Statutory Construction and E-State Constitutional Challenge and F-Federal Constitutional Challenge (n = 49) A0 - taxpayer challenge directed at state/federal tax legislation per se or at the source of this legislation in the tax power of these respective sovereigns AS - legislative (state/federal) intent statutorily expressed and/or constitutionally sanctioned bounds of tax power exercised, given the limitations of state police power and other federal directions 267 Data . Results Justice 76/1102 (8—1) Br 77/844 (8-1) Ca (exp) 81/1279 St (8—1) H 76/1136 (8-1) R (exp) #724; #797; McR 81/1245 (8-1) R .973 VanD 81/666 (7—2) MMR .833 Su 81/814 (7-2) NSR 11 Bu (exp) 81/1279 (7-2) 81/1307 (7-2) #75; #76 80/500 (6-3) 76/893 (6-3) 79/780 (5—4) #724; #797 81/1245 (5-4) 81/1279 (5-4) 81/1193 (4—3) 76/815 (4-5) 78/1411 (3-5) 76/248 (3-6) 76/313 (3-6) 77/710 (3-6) 77/929 (3-6) (exp) 76/815 (3-6) #454; #455; #456; #457 79/1054 (3-6) 79/1520 (3—6) 80/91 (3-6) 80/233 (3-6 80/241 (3.6 80/299 (3-6 80/402 (3-6 80/477 (3—6 80/532 (3-6 #251; #252 (2-6) 76/772 (2-6) 76/793 (2-6) 80/1236 (2—6) #13; #14; #15 81/22 (2-6) 81/239 (2-6) (exp) 77/929 (2—7) 78/381 (2-7) 81/691 (2-7) ) ) ) ) ) ) 7 6/422 Scale Score .96 .95 .98 .63 .61 .88 .77 .80 .92 Rank \ONONCIDJt‘Kfil—‘f—‘UO mpg-5.1 34. 35. 36. 37. 268 F - Revenue Acts: same F - Federal Tax for Reasons of Social Policy: same F - Federal Taxation involving Testamentary Trusts: same Description F - Combined F-Refund and F-Federal Statutory Construction (n = 39) A0 - taxpayer challenging application of federal tax statute (either immediately upon its application or "ex post facto" AS - congressional intent and merits of taxpayer's claim Data Results Justice Scale Score Rank #77 78/365 (8-1) Br .90 2 78/1311 (8-1) Ca .89 3 81/162 (8-1) St 1.00 1 81/1143 (8-1) H .55 4 81/1265 (8—1) R .67 6 81/1272 (8-1) McR .74 7 77/844 (8-1) R .960 VanD .64 5 (exp) 81/1279 MMR .773 Su .72 8 (8—1) NSR l6 Bu .85 9 79/367 (7—2) 79/372 (7-2) (exp) 81/1279 (7-2) #75; #76 80/500 (6-3) 77/784 (6-2) 77/1439 (5-4) 80/62 (5-4) 81/1279 ' (5—4) 80/29 (4-5) 80/35 (4-5) 78/719 (3—6) #873; #899 78/1361 (3-6) 78/634 (3-6) 78/645 (3-6) #24; #110; #111; #439; #494 80/83 (3—6) 80/233 (3-6) 80/241 (3—6) 269 #251; #252 76/422 (2-6) 76/772 (2-6) 76/793 (2-6) 80/1268 (2-7) 81/1324 (2-7) 79/623 (1-8) 79/1343 (1-8) 270 III. Twenty-Five Variable Sets J Scale Set (N = 3 scales) l. J - State Jurisdiction: same* 2. J - Federal Jurisdiction description same; (n = 4) Data Results Justice Scale Score Rank 76/389 (7-1) Br 1.00 1 80/54 (7-2) Ca .67 4.5 77/1148 (2-7) St .75 2 79/1546 (1-8) H .50 4.5 R 075 765 McR .75 9 R .944 VanD .50 4.5 MMR .685 Su .75 7.5 NSR 1 Bu .50 4.5 3. J - Full Faith and Credit description same; (n = 5) Data Results Justice Scale Score Rank 79/1100 (8—1) Br .80 3.5 80/9 (8-1) Ca .80 2 80/220 (7—2) St 1.00 1 78/1206 (4-5) H .80 3.5 78/269 (2-7) R .60 6 McR .80 9 R 1.00 VanD .60 6 MMR .733 Su .60 6 NSR l Bu .60 8 Scale Set (N = 3 scales) C 4. C - Statutory Construction State/Federal Mix description same; (n = 7) * Used thus, "same" indicates identity with the corresponding scales in the previous sets (i.e., the fifty—six and thirty-seven variable sets respectively). Data 78/968 (8- 1) 76/843 (7- 1) 77/641 (6- 2) 78/315 (6- 3) 76/984 (5-4) 81/1066 (5-4) 77/131 (4-5) 271 Results Justice Br Ca St H R McR R .931 VanD MMR .786 Su NSR 5 Bu C - Procedural State/Federal Mix description same; (n = 8) Data 77/413 (8- 1) 78/484 (8- 1) 76/356 (8-1) 78/369 (7- 2) 81/843 (7- 2) 79/603 (4 5) 76/1054 (3-6) 77/439 (2—7) C - Due Process/Subconstitutional Fair Procedure Results Justice Br Ca St H R McR R 1.00 VanD MMR .794 Su NSR 1 Bu Scale Score .86 1.00 1.00 .86 .86 .57 .50 .57 .86 Scale Score .88 1.00 1.00 .75 .63 .88 .63 .63 .75 \DCDONMUWNME description same, with additional specification that cases here involve procedure guaranteeing the integrity of the federal criminal trial (especially amendments IV — VIII) (n Data #98; #99; #100 77/159 (7-2) 81/78 (5-3) 78/674 (5-4 79/1530 (3- 77/212 (2-7 77/260 (2-7 78/381 (2-7 ) 6) ) ) ) E Scale Set (n = 15) E - Bankrupt: Results Justice Br Ca St H R McR R .975 VanD MMR .755 Su NSR 2 Bu 8 ame = 9) Scale Score .56 1.00 1.00 .56 .56 .89 .56 .67 1. 00 CIDONO\\OO\.I:}—'l—‘UO \ON-II'CDONC‘HHW Rank Rank \DU‘I Rank mmm 2.7.1."- ' bi... L lo. 11. 13. E - Liability description same; (n = 6) Data Results Justice 76/903 (7-1) Br 77/743 (7- 2) Ca 78/348 (7- 2) St 78/216 (5- 4) H 76/598 (3-5) R (exp) 76/903 (2-6) McR R .976 VanD MMR .815 Su NSR 2 Bu E - Gold Clause: same E - Insurance Contract: same E - Noninsurance Contract description same; (n = 4) Data Results Justice 80/105 (8—1) Br 78/1206 (4-5) Ca 76/866 (3-6) St 81/720 (2—6) H R McR E - ICC: same E - Federal Government Regulatory/Administrative Agencies 272 R .961 VanD MMR .883 Su NSR 1 Eu description same; (n = 9) 77/706 Results Br Ca St H R McR R .962 VanD MMR .743 Su NSR 3 Bu Justice Scale Scale 1. l. 1 Score Score .75 .00 .00 .75 .OO .75 .75 .75 .75 Scale Score .78 .00 .00 .67 .56 .89 .56 .67 .56 CDNJI‘CDON-E'I—‘WH U‘I U‘IUT UWUT U'l O\O\O\O\\OJ‘:I—" U'IUWUTUI U'lmU'IKONEF-Jl—‘UU Rank Rank Rank U'IUT 14. 15. 16. E - Antitrust 273 description same; (n = 5) Data 77/825 (8-1) #568; #569; #570 76/999 (4-2) 80/1300 (3-6) Results Justice Br Ca St H R McR R 1.00 VanD MMR .777 Su NSR l Bu E - Commerce Regulation description same; (n = 13) Data #419; #420—21; #422-23 81/893 (5-4) 81/953 (5-4) 79/1468 (4-5) #636; #649; #650 80/1161 (4-5) (exp) #636; #649;'#650 80/1161 (3—6) #135; #260 79/446 (1-8) E — Intergovernmental Tax Immunity Results Justice Br Ca St H R McR R 1.00 VanD MMR .89 Su NSR O Bu description same; (n = 5) Data 81/666 (7—2) 76/893 (6-3) 76/815 (4—5) 80/1236 (2-6) (exp) 76/815 (3-6) Results Justice Br Ca St H R McR R .954 VanD MMR .844 Su NSR 2 Bu 1. l. 1. .50 .80 .60 .80 .50 .80 Scale HrekJH Scale 1. .80 1. .60 .80 .80 .80 .80 .00 Scale Score 00 00 00 Score .85 .00 .85 .62 .69 .00 .00 .00 .00 Score 00 OO CDChCIDU'I-EONNN ~qxrq~401twokdm anHfikn \OO\O\CIJJ:‘U'li-‘UO}—’ Rank WWW Rank .5 Rank L 14. 15. 16. E — Antitrust 27 description same; (n Data 77/825 (8-1) #568; #569; #570 76/999 (4-2) 80/1300 (3-6) 3 Results R 1.00 MMR .77 NSR l E - Commerce Regulation description same; (n Data #419; #420—21; #422-23 81/893 (5-4) 81/953 (5-4) 79/1468 (4-5) #636; #649; #650 80/1161 (4-5) (exp) #636; #649;'#650 80/1161 (3-6) #135; #260 79/446 (1-8) 7 Results R 1.00 MMR .89 NSR 0 5) Justice Br Ca St H R McR VanD Su Bu 13) Justice Br Ca St H R McR VanD Su Bu E — Intergovernmental Tax Immunity description same; (n Data 81/666 (7-2) 76/893 (6-3) 76/815 (4-5) 80/1236 (2—6) (exp) 76/815 (3-6) Results R .954 MMR .844 NSR 2 5) Justice Br Ca St H R McR VanD Su Bu Scale Scale FHAFJH Scale 1. .80 1. .60 .80 .80 .80 .80 .00 Score 1.00 1. 1.00 .50 .80 .60 .80 .50 .80 00 Score Score 00 00 oocncnsz-oxmmm ~qxrq~401twokam \OO\C\CDJ:'U'IHUL)l—' Rank UTU'IU‘I Rank \JIUWU'IU'I Rank U'IUW 17. 18. 19. 20. 274 E — Fourteenth Amendment, Equal Protection: same E - State Tax Policy re Corporations (within state boundaries but having extrastate connections) (n = 6) A0 - corporation (foreign or with extrastate connec— tions) as constituting a special category within state tax policy hence recipient of differential treatment regarding tax law administration AS — Judgment as to the nature (constitutional or unconstitutional) of the burden such differential policy entails Data Results Justice Scale Score Rank 76/1102 (8—1) Br 1.00 2 81/814 (7—2) Ca 1.00 2 76/313 (3-6) St 1.00 2 77/710 (3-6) H .67 5 80/91 (3—6) R .67 5 80/299 (3—6) McR .83 8 R .977 VanD .83 8 MMR .833 Su .67 5 NSR 1 Bu .83 8 E - State Police Power and Regulation via Comm'ns description same; (n = 14) Data Results Justice Scale Score Rank 77/288 (8-1) Br .86 3 77/1180 (6-2) Ca 1.00 1.5 78/413 (5-4) St 1.00 1.5 78/940 (5—4) H .57 4 80/669 (5-4) R .50 5 81/835 (5—4) McR .85 6 81/573 (4-5) R .973 VanD .92 7 81/1223 (4—5) MMR .847 Su .93 8 78/260 (3—6) NSR 3 Bu 1.00 9 79/1365 (3-6) 79/1640 (3-6) 80/675 (3-6) 76/747 (2-6) 79/949 (2-6) E - State Provisions for Labor: same 5 - I.- 275 21. E - State Regulation of Foreign Corporations description same; (n = 6) Data Results Justice Scale Score Rank 78/1160 (8-1) Br 1.00 1.5 80/220 (7-2) Ca .83 3.5 76/500 (7-2) St 1.00 1.5 79/1070 (5-4) H .67 5 77/652 (3-5) R 1.00 3.5 (eXp) 77/652 McR 1.00 9 (2-6) R 1.00 VanD .50 6.5 MMR .814 Su .50 6.5 NSR O Bu .83 8 F Scale Set (N a 4 scales) 22. F - Federal Taxation of Gifts description same; (n = 6) Data Results Justice Scale Score Rank 77/844 (8-1) Br 1.00 1.5 77/784 (6-2) Ca 1.00 3 80/29 (4-5) St 1.00 1.5 80/35 (4-5) H .60 4 76/772 (2-6) R .67 6 76/793 (2-6) McR .67 6 R 1.00 VanD .67 6 MMR .826 Su .83 8 NSR 0 Bu 1.00 9 23. F - Federal Taxation for Reasons of Social Policy: same 24. F - Federal Taxation involving Tax Refunds, Discounts Permissible Deductions description same; (n = 10) Data Results Justice Scale Score Rank 78/365 (8-1) Br .90 3 78/1311 (8-1) Ca 1.00 1.5 81/1265 (8-1) St 1.00 1.5 81/1272‘(8-1) H .70 5.5 79/367 (7-2) R .80 9 79/372 (7-2) McR .70 5.5 #75; #76 80/500 R 1.00 VanD .80 4 (6-3) ‘ MMR .788 Su .60 7 78/719 (3-6) NSR 2 Bu .60 8 81/1324 (2-7) 275 21. E - State Regulation of Foreign Corporations description same; (n = 6) Data Results Justice Scale Score Rank 78/1160 (8—1) Br 1.00 1.5 80/220 (7-2) Ca .83 3.5 76/500 (7-2) St 1.00 1.5 79/1070 (5-4) H .67 5 77/652 (3-5) B 1.00 3.5 (exp) 77/652 McR 1.00 9 (2-6) R 1.00 VanD .50 6.5 MMR .814 Su .50 6.5 NSR O Bu .83 8 F Scale Set (N = 4 scales) 22. F - Federal Taxation of Gifts description same; (n = 6) Data Results Justice Scale Score Rank 77/844 (8-1) Br 1.00 1.5 77/784 (6-2) Ca 1.00 3 80/29 (4-5) St 1.00 1.5 80/35 (4-5) H .60 4 76/772 (2-6) R .67 6 76/793 (2-6) McR .67 6 R 1.00 VanD .67 6 MMR .826 Su .83 8 NSR O Bu 1.00 9 23. F - Federal Taxation for Reasons of Social Policy: same 24. F - Federal Taxation involving Tax Refunds, Discounts Permissible Deductions description same; (n = 10) Data 78/365 (8.1) 78/1311 (8-1) 81/1265 (8-1) 81/1272'c8—1) 79/367 (7-2) 79/372 (7-2) Results Justice Br Ca St H R McR #75; #76 80/500 R 1.00 VanD (6-3) 78/719 (3-6) 81/1324 (2-7) MMR .788 Sn NSR 2 Bu Scale Score .90 l. l 00 .00 .70 .80 .70 .80 .60 .60 CDN tkfikDU'Tl—‘l—‘w Rank U'l UWU'IU'I __———' ”1‘ - 25. F — Federal Taxation involving Testamentary Trusts 276 description same; (n = 11) Data 77/1439 (5—4) 80/62 (5-4) #873; #899 78/1361 (3-6) 78/634 (3-6) 78/645 (3—6) #24; #110; #111; #439; #494 80/83 (3-6) Results Justice Br Ca St H R McR R .979 VanD MMR .920 Su NSR 2 Bu Scale 1. .82 .00 .82 .64 .00 .00 .OO .00 HFJFW4 Score 00 ~0xrq—qrflfireuow UHfikfiUl Rank .5 ' V 277 IV. Twenty-One Variable Sets J Scale Set (N = 3) l. J - State Jurisdiction: same as in original cor- responding 56 variable set 2. J - Federal Jurisdiction: same as in corresponding 25 variable set 3. J - Full Faith and Credit: same as in corresponding 25 variable set C Scale Set (N = 2) 4. C - Statutory Construction: same as in corresponding 25 variable set 5. C - Combined C-Procedural (State/Federal Mix) and C—Due Process/Subconstitutional Fair Procedure description same; (n = 17) Data Results Justice Scale Score Rank 77/413 (8-1) Br .71 3 78/484 (8-1) Ca 1.00 1.5 76/356 (8-1) St 1.00 1.5 #98; #99; #100 H .65 4 77/159 (7—2) R .53 6 78/369 (7-2) McR .88 9 81/843 (7-2) R .984 VanD .59 5 81/78 (5-3) MMR .752 Su .53 7 78/674 (5—4) NSR 3 Bu .88 8 79/603 (4-5) 76/1054 (3-6) 79/1530 (3-6) 77/212 (2-7) 77/260 (2—7) 77/439 (2~7) 78/381 (2-7) E Scale Set (N = 12) 6. E - Contracts (private; insurance); Bonds; Contract Systems description same; (n = 9) 278 Data Results Justice Scale Score Rank 80/105 (8—1) Br .67 3 76/490 (7-1) Ca .71 2 76/648 (7-1) St .88 1 78/1206 (4-5) H .56 4 76/866 (3-6) R .78 8 81/720 (2- 6) McR .89 9 77/197 (2- 7) R .942 vanD .67 6 78/999 (1 -8) MMR .722 Su .67 6 78/934 (11-8) NSR 4 Bu .67 6 E - Intergovernmental Tax Immunity: same as in corresponding 25 variable set E - Liability: same as in corresponding 25 variable set E - Commerce Regulation: same as in corresponding 25 variable set E - Federal Regulatory/Administrative Agencies: same as in corresponding 25 variable set E - Antitrust: same as in corresponding 25 variable set E - State Regulation description same; (n = 23) 77/288 (8-1) 78/1160 (8—1) 80/220 (7—2) 76/500 (7—2) 77/1180 (6—2) 78/940 (5-4) 79/1070 (5-4) 80/669 (5-4) 81/703 (5— 4) 81/835 (5- 4) 81/1229 (5 80/1347 (4 81/573 (4- 81/1223 (4 77/652 (3- 78/260 (3 79/1365 (- 79/1640 ( Results Justice Br Ca St H R McR R .975 VanD MMR .852 Su NSR 6 Bu Scale Score .91 .96 .00 .61 .57 .91 .82 .83 .96 \OO\O\CDU'1 .51—4 (\JUL) Rank U1U’1 Data Results Justice Scale Score Rank 80/105 (8-1) Br .67 3 76/490 (7-1) Ca .71 2 76/648 (7-1) St .88 1 78/1206 (4—5) H .56 4 76/866 (3—6) R .78 8 81/720 (2-6) McR .89 9 77/197 (2-7) R .942 VanD .67 6 78/999 (1-8) MMR .722 Su .67 6 78/934 (1-8) NSR 4 Bu .67 6 E - Intergovernmental Tax Immunity: 278 same as in corresponding 25 variable set Liability: same as in corresponding 25 variable Commerce Regulation: same as in corresponding 25 E _ set E _ variable set E _ Federal Regulatory/Administrative Agencies: same as in corresponding 25 variable set E - Antitrust: set E - State Regulation description same; (n = 23) same as in corresponding 25 variable Data Results Justice Scale Score Rank 77/288 (8-1) Br .91 3 78/1160 (8-1) Ca .96 2 80/220 (7-2) St .00 1 76/500 (7-2) H .61 4 77/1180 (6-2) R .57 5 78/940 (5—4) McR .91 8 79/1070 (5—4) R .975 VanD .82 6.5 80/669 (5-4) MMR .852 Su .83 6.5 81/703 (5—4) NSR 6 Bu .96 9 81/835 (5-4) 81/1229 (5-4) 80/1347 (4-5) 81/573 (4-5) 81/1223 (4-5) 77/652 (3-5) 78/260 (3—6) 79/1365 (3-6) 79/1640 (3-6) 10. 11. 12. Data 80/105 (8-1) 76/490 (7-1) 76/648 (7-1) 78/1206 (4-5) 76/866 (3-6) 81/720 (2—6) 77/197 (2-7) 78/999 (1-8) 78/934 (1-8) E - Intergovernmental Tax Immunity: corresponding 25 variable set E - Liability: set E — Commerce Regulation: variable set E — Federal Regulatory/Administrative Agencies: as in corresponding 25 variable set E - Antitrust: set 278 Results Justice Br Ca St H R McR R .942 vanD MMR .722 Su NSR 4 Bu E - State Regulation description same; (n = 23) Data 77/288 (8—1) 78/1160 (8-1) 80/220 (7-2) 76/500 (7—2) 77/1180 (6-2) 78/940 (5-4) 79/1070 (5-4) 80/669 (5-4) 81/703 (5- 4) 81/835 (5- 4) 81/1229 (5 80/1347 (4 - 81/573 (4- 5 81/1223 (4 - 77/652 (3- 5 78/260 (3-6 3- ) 3- ) -4) 5) ) 5) § 79/1365 ( 6 79/1640 ( 6 Results Justice Br Ca St H R McR R .975 VanD MMR .852 Su NSR 6 Bu Scale Score .67 .71 .88 .56 .78 .89 .67 .67 .67 same as in Scale Score .91 .96 .00 .61 .57 O\O\O\\OCDJ:I—’f\)w same as in corresponding 25 variable same as in corresponding 25 variable \OO\O\COU"IJ:‘H Rank same as in corresponding 25 same Rank U'IU'I nailII-L. 279 80/675 (3-6) (exp) 80/1347 (3-6) 76/747 (2-6) (exp) 77/652 (2—6) 79/949 (2-6) E - ICC: same as in corresponding original 56 variable set E - Bankrupt: same as in corresponding, original 56 variable set E - Gold Clause: same as in corresponding, original 56 variable set E - Labor: same as in corresponding, original 56 variable set E - State Tax minus Intergovernmental Tax Immunity description same; (n = 29) Data Results Justice Scale Score Rank 76/1102 (8-1) Br .97 3 76/1136 (8-1) Ca 1.00 1.5 (exp) #724; #797 St 1.00 1.5 81/1245 (8-1) H .64 4 81/814 (7-2) R .66 5 78/987 (6-3) McR .93 9 79/788 (5—4) R .995 VanD .86 7 #724; #797 MMR .861 Su .83 6 81/1245 (5-4) NSR 2 Bu .86 8 81/1193 (4-3) 78/1411 (3-5) 76/248 (3-6) 76/313 (3—6) 77/710 (3—6) 77/929 (3-6) #454; #455; #456 #457 71/1054 (3—6) 79/1520 (3-6) 80/91 (3-6) 80/299 (3-6) 80/402 (3-6) 80/532 (3-6) #13; #14; #15 81/22 (2-6) 81/239 (2—6) (eXp) 77/929 (2-7) 280 F Scale Set (N = 4 scales) 18. 19. 20. 21. F Federal Taxation of Gifts: same as in correspond- ing 25 variable set Federal Taxation for Reasons of Social Policy: same as in corresponding, original 56 variable set Federal Taxation involving Tax Refunds, Dis- counts, Permissible Deductions: same as in corresponding 25 variable set Federal Taxation involving Testamentary Trusts: same as in corresponding 25 variable set APPENDIX B DISSENSUAL CASES 1931-1936 APPENDIX B DISSENSUAL CASES 1931-1936 Listing by Term, in order of Consideration by Court;Citation from Lawyers' Edition of the U. S. Reports October Term 1931 Chicago, Rock Island and Pacific Railway Company v. United States, 76/177 United States v. Baltimore and Ohio Rail Company, 76/243 Hoeper v. Tax Commission of Wisconsin, 76/248 First National Bank of Boston v. Maine, 76/313 Arizona Grocery Company v. Atchison, Topeka and Santa Fe Rail Company, 76/348 Dunn v. United States, 76/356 Leman v. Krentler-Arnold Hinge Last Company, 76/389 Miller v. Standard Nut Margarine Company, #251 76/422 Rose v. Standard Nut Margarine Company, #252 76/422 American Surety Company v. Greek Catholic Union, 76/490 Great Atlantic and Pacific Tea Company v. Maxwell, 76/500 (memorandum case #2) Crowell v. Benson, 76/598 St. Pang Sire and Marine Insurance Company v. Bachmann, 76/ 4 New State Ice Company v. Liebmann, 76/747 Heiner v. Donnan, 76/772 Handy v. Delaware, 76/793 Burnet v. Coronado Oil and Gas Company, 76/815 United States v. Limehouse, 76/843 Coombes v. Getz Corporation, 76/866 Pacific Company v. Johnson, 76/893 Alexander v. Kellogg and Sons #444, 76/903 Nixon v. Condon, 76/984 United States v. Swift Company, #568, 76/999 American Wholesale Grocers Association v. Swift and Company, #569, 76/999 National Wholesale Grocers Association v. Swift and Company, #570, 76/999 Reed v. Allen, 76/1054 Lawrence v. State Tax Commission, 76/1102 282 APPENDIX B DISSENSUAL CASES 1931—1936 Listing by Term, in order of Consideration by Court;Citation from Lawyers' Edition of the U. S. Reports October Term 1931 Chicago, Rock Island and Pacific Railway Company v. United States, 76/177 United States v. Baltimore and Ohio Rail Company, 76/243 Hoeper v. Tax Commission of Wisconsin, 76/248 First National Bank of Boston v. Maine, 76/313 Arizona Grocery Company v. Atchison, Topeka and Santa Fe Rail Company, 76/348 Dunn v. United States, 76/356 Leman v. Krentler-Arnold Hinge Last Company, 76/389 Miller v. Standard Nut Margarine Company, #251 76/422 Rose v. Standard Nut Margarine Company, #252 76/422 American Surety Company v. Greek Catholic Union, 76/490 Great Atlantic and Pacific Tea Company v. Maxwell, 76/500 (memorandum case #2) Crowell v. Benson, 76/598 St. Pguéugire and Marine Insurance Company v. Bachmann, 7 / New State Ice Company v. Liebmann, 76/747 Heiner v. Donnan, 76/772 Handy v. Delaware, 76/793 Burnet v. Coronado Oil and Gas Company, 76/815 United States v. Limehouse, 76/843 Coombes v. Getz Corporation, 76/866 Pacific Company v. Johnson, 76/893 Alexander v. Kellogg and Sons #444, 76/903 Nixon v. Condon, 76/984 United States v. Swift Company, #568, 76/999 American Wholesale Grocers Association v. Swift and Company, #569, 76/999 National Wholesale Grocers Association v. Swift and Company, #570, 76/999 Reed v. Allen, 76/1054 Lawrence v. State Tax Commission, 76/1102 282 APPENDIX B DISSENSUAL CASES 1931—1936 Listing by Term, in order of Consideration by Court;Citation from Lawyers’ Edition of the U. S. Reports October Term 1931 Chicago, Rock Island and Pacific Railway Company v. United States, 76/177 United States v. Baltimore and Ohio Rail Company, 76/243 Hoeper v. Tax Commission of Wisconsin, 76/248 First National Bank of Boston v. Maine, 76/313 Arizona Grocery Company v. Atchison, Topeka and Santa Fe Rail Company, 76/348 Dunn v. United States, 76/356 Leman v. Krentler-Arnold Hinge Last Company, 76/389 Miller v. Standard Nut Margarine Company, #251 76/422 Rose v. Standard Nut Margarine Company, #252 76/422 American Surety Company v. Greek Catholic Union, 76/490 Great Atlantic and Pacific Tea Company v. Maxwell, 76/500 (memorandum case #2) Crowell v. Benson, 76/598 St. Pguéugire and Marine Insurance Company v. Bachmann, 7 / New State Ice Company v. Liebmann, 76/747 Heiner v. Donnan, 76/772 Handy v. Delaware, 76/793 Burnet v. Coronado Oil and Gas Company, 76/815 United States v. Limehouse, 76/843 Coombes v. Getz Corporation, 76/866 Pacific Company v. Johnson, 76/893 Alexander v. Kellogg and Sons #444, 76/903 Nixon v. Condon, 76/984 United States v. Swift Company, #568, 76/999 American Wholesale Grocers Association v. Swift and Company, #569, 76/999 National Wholesale Grocers Association v. Swift and Company, #570, 76/999 Reed v. Allen, 76/1054 Lawrence v. State Tax Commission, 76/1102 282 283 Michigan v. Michigan Trust Company, 76/1136 Adams v. Mills, 76/1184 Colorado v. Symes, 76/1253 October Term 1932 Wood v. Broom, 77/131 Powell v. Alabama, #98, 77/159 Patterson v. Alabama, #99, 77/159 Weems V. Alabama, #100, 77/159 Washington Fidelity National Insurance Company v. Burton, 77/196 Grau v. United States, 77/212 Interstate Commerce Commission v. New York, New Haven and Hartford Railroad Company, 77/248 Sgro v. United States, 77/260 Stephenson v. Binford, 77/288 Sorrells V. United States, 77/413 Fairmont Glass Works v. Cub Fork Coal Company, 77/439 Interstate Commerce Commission v. Oregon-Washington Rail and Navigation Company, 77/588 Cook v. United States, 77/641 Rogers v. Guaranty Trust Company, 77/652 Dickson v. Uhlmann Grain Company, 77/691 Federal Trade Commission v. Royal Milling Company, 77/706 Anglo-Chilean Nitrate Sales Corporation v. Alabama, 77/710 Rocco v. Lehigh Valley Rail Company, 77/743 Burnet v. Guggenheim, 77/748 Norwegian6Nitrogen Products Company v. United States, 77/79 Appalachian Coal, Inc. v. United States, 77/825 Burnet v. Brooks, 77/844 Liggett Company V. Lee, 77/929 . United States V. Dubilier Condenser Corporation, 77/1114 Hurn v. Oursler, 77/1148 Los Angeles Gas and Electric Company V. Railroad Commission of California, 77/1180 South Carolina v. Bailey, 77/1292 O'Donoghue v. United States, #729, 77/1356 Hitz V. United States, #730, 77/1356 Texas and Pacific Rail Company v. United States, 77/1410 Burnet v. Wells, 77/1439 284 October Term 1933 Krauss Brothers Lumber Company V. Dimon SS Corporation, 78/216 Dakin v. Bayly, 78/229 Southern Rail Company V. Virginia ex rel. Shirley, 78/260 Y'rbcrough V. Yarborough, 78/269 Factor v. Laubenheimer, 78/315 May Igsufignce Company v. Hamburg-Amer. P. Aktiengesellschaft, 7 /3 Helvering V. Pardee, #77, 78/365 Funk V. United States, 78/369 United States v. Murdock, 78/381 Home Building and Loan Association v. Blaisdell, 78/413 Burroughs v. United States, 78/484 Freuler v. Helvering, 78/634 Whitcomb v. Helvering, 78/645 Synder v. Massachusetts, 78/674 Helvering v. Falk, 78/719 Landress v. Phoenix Mutual Life Insurance Company, 78/934 Nebbia v. New York, 78/940 Hansen v. Haff, 78/968 Life gndBCasualty Insurance Company of Tennessee v. McCray, 7 /9 7 Travelers Protective Association V. Prinsen, 78/999 Arrow-Hart and He eman Electric Company V. Federal Trade Commission, 7 /1007 Clark v. Williard, 78/1160 Sanders v. Armour Fertilizer Works, 78/1206 Helvering V. Independent Life Insurance Company, 78/1311 Reynolds v. United States, 78/1353 Helvering v. New York Trust, #873, 78/1361 New York Trust Company v. Helvering, #899, 78/1361 Concordia Fire Insurance Company v. Illinois, 78/1411 October Term 1934 Old Misséon Portland Cement Company v. Helvering, #107, 79/3 7 Gulf, Mobile, and Northern Railroad Company v. Helvering, #413, 79/372 Panama Refining Company v. Ryan, #135, 79/446 Amazon Petroleum Corporation v. Ryan, #260, 79/446 Dimick v. Schiedt, 79/603 Helvering V. Taylor, 79/623 Fox V. Standard Oil of New Jersey, 79/780 Norman v. Baltimore and Ohio Railroad Company, #270, 79/885 United States v. Bankers Trust Company, #471; #472, 79/885 Nortz V. United States, 79/907 Perry v. United States, 79/912 Nashville, Chattanooga and St. Louis Railway V. Walters, 79/9 9 285 Stewart Dry Goods Company v. Lewis, #454, 79/1054 Levy v. Lewis, #455, 79/1054 Penney Company v. Lewis, #456, 70/1054 Kroger Company v. Lewis, #457, 79/1054 Metropolitan Casualty Insurance Company V. Brownell, 79/1070 Broderick V. Rosner, 79/1100 Helvering v. Rankin, 79/1343 Georgia Railway and Electric Company V. City of Decatur, 79/1365 Atchison, TOpeka and Santa Fe Railway Company V. United States, #606, 79/1382 Union Stock Yard Company V. United States, #607, 79/1382 Atlantic Coast Line Railroad Company V. Florida, #344, 79/1451 Florida v. United States, #345, 79/1451 Railroad Retirement Board V. Alton Railroad Company, 79/1468 Senior v. Braden, 79/1520 Herndon V. Georgia, 79/1530 United States v. West Virginia, 79/1546 West v. Chesapeake and Potomac Telephone Company, 79/1640 October Term 1935 Borax Consolidated V. City of Los Angeles, 80/9 Helvering V. St. Louis Union Trust Company, 80/29 Becker v. St. Louis Union Trust Company, 80/35 Becker Steel Company V. Cummings, 80/54 Helvering V. City Bank Farmers Trust Company, 80/62 McFeely V. Commissioner of Internal Revenue, #24, 80/83 United States v. First National Bank of Boston, #110, 80/83 Helvering v. Lee, #111, 80/83 Rand v. Helvering, #439, 80/83 Dibblee v. Commissioner of Internal Revenue, #494, 80/83 Schuykill Trust Company v. Pennsylvania, 80/91 American Surety Company of New York V. Westinghouse Electric Mfg. Company, 80/105 McCandless v. Furland, 80/121 Milwaukee County V. White Company, 80/220 United States V. Constantine, 80/233 United States v. Kesterson, 80/241 Colgate V. Harvey, 80/299 Noble-Trotter Rice Milling Company V. Fontenot, 80/402 (memorandum case #587) United States v. Butler, 80/477 United States V. Safety Car Heating and Light Company, #75, 80/500 Rogers v. Safety Car Company, #76, 80/500 285 Stewart Dry Goods Company V. Lewis, #454, 79/1054 Levy V. Lewis, #455, 79/1054 Penney Company v. Lewis, #456, 70/1054 Kroger Company v. Lewis, #457, 79/1054 Metropolitan Casualty Insurance Company v. Brownell, 79/1070 Broderick v. Rosner, 79/1100 Helvering v. Rankin, 79/1343 Georgia Railway and Electric Company v. City of Decatur, 79/1365 Atchison, Topeka and Santa Fe Railway Company V. United States, #606, 79/1382 Union Stock Yard Company v. United States, #607, 79/1382 Atlantic Coast Line Railroad Company V. Florida, #344, 79/1451 Florida v. United States, #345, 79/1451 Railroad Retirement Board V. Alton Railroad Company, 79/1468 Senior v. Braden, 79/1520 Herndon V. Georgia, 79/1530 United States v. West Virginia, 79/1546 West v. Chesapeake and Potomac Telephone Company, 79/1640 October Term 1935 Borax Consolidated V. City of Los Angeles, 80/9 Helvering v. St. Louis Union Trust Company, 80/29 Becker v. St. Louis Union Trust Company, 80/35 Becker Steel Company v. Cummings, 80/54 Helvering v. City Bank Farmers Trust Company, 80/62 McFeely V. Commissioner of Internal Revenue, #24, 80/83 United States v. First National Bank of Boston, #110, 80/83 Helvering v. Lee, #111, 80/83 Rand v. Helvering, #439, 80/83 Dibblee v. Commissioner of Internal Revenue, #494, 80/83 Schuykill Trust Company V. Pennsylvania, 80/91 American Surety Company of New York V. Westinghouse Electric Mfg. company, 80/105 McCandless V. Furland, 80/121 Milwaukee County v. White Company, 80/220 United States V. Constantine, 80/233 United States v. Kesterson, 80/241 Colgate V. Harvey, 80/299 Noble-Trotter Rice Milling Company V. Fontenot, 80/402 (memorandum case #587) United States V. Butler, 80/477 Unitgd States V. Safety Car Heating and Light Company, #75, 0/500 Rogers v. Safety Car Company, #76, 80/500 286 Great Northern Railway Company V. Weeks, 80/532 Borden's Farm Products Company v. Ten Eyck, 80/669 Mayflower Farms V. Ten Eyck, 80/675 Ashwander v. Tennessee Valley Authority, 80/688 Jones V. Securities and Exchange Commission, 80/1015 Carter v. Carter Coal Company, #636, 80/1161 R. C. Tway Coal Company V. Glenn, #649, 80/1161 R. C. Tway Coal Company v. Clark, #650, 80/1161 Graves v. Texas Company, 80/1236 Koshland V. Helvering, 80/1268 United States v. Elgin, Joliet and Eastern Railway Company, 80/1300 Ashton v. Cameron County Water Improvement District #1, 80/1309 Morehead v. New York ex rel. Tipaldo, 80/1347 October Term 1936 Cate v. Beasley, 81/21 Valegtine V. Great Atlantic and Pacific Tea Company, #13, 1/22 Valegtine V. Graham Department Stores Company, #14, 1/22 Valentine V. Walgreen Company, #15, 81/22 United States v. Wood, 81/78 Binney V. Long, 81/239 United States v. Curtiss—Wright Export Corporation, 81/255 Greag Northern Railway Company v. State of Washington, 1/573 Helvering V. Midland Mutual Life Insurance Company, 81/612 Powell v. United States, 81/643 Swayne and Hoyt v. United States, 81/659 New York ex rel. Cohn v. Graves, 81/666 Holyoke Water Power Company V. American Writing Paper Company, 8l/678 Brush v. Commissioner of Internal Revenue, 81/691 West Coast Hotel Company v. Parrish, 81/703 Dugas v. American Surety Company, 81/720 Henneford v. Silas Mason Company, 81/814 Highland Farms Diary v. Agnew, 81/835 District of Columbia V. Clawans, 81/843 National Labor Relations Board V. Jones and Laughlin Steel Corporation, #419, 81/893 National Labor Relations Board V. Fruehauf Trailer Company, #420—21, 81/893 National Labor Relations Board v. Friedman-Harry Marks Clothing Company, #422-23, 81/893 The Associated Press v. National Labor Relations Board, 81/953 Herndon v. Lowry, 81/1066 287 Anniston Manufacturing Company v. Davis, 81/1143 United States v. American Sheet and Tin Plate Company, 81/1186 Great Atlantic and Pacific Tea Company v. Grosjean, 81/1193 Hartford Steam Boiler Inspection and Insurance Company v. Harrison, 81/1223 Senn v. Tile Layers Protective Union, 81/1229 Carmichael v. Southern Coal and Coke Company, #724, 81/1245 Carmichael v. Gulf States Paper Corporation, #797, 81/1245 Stone V. White, 81/1265 United States ex rel. Girard Trust Company v. Helvering, 81/1272 Charles C. Steward Machine Company v. Davis, 81/1279 Helvering v. Davis, 81/1307 Thomas v. Perkins, 81/1324 BIBLIOGRAPHY BIBLIOGRAPHY: METHODOLOGY Articles Cattell, Raymond B. "Factor Analysis: An Introduction to Essentials." 21 Biometrics 190 (March, 1965). . "The Role of Factor Analysis in Research." 21 Biometrics 405 (June, 1965). DeTemple, David, and Williams, A. V. "Factor C." Techni- cal Report No. 35. Computer Institute for Social Science Research, Michigan State University, 1968. irumm, John G. "A Factor Analysis of Legislative Be- havior." 7 Midwest Journal of Political Science 336 (November, 1963). Guthery, Scott; Spaeth, Harold; and Thomas, Stuart. "Fascale." Technical Report No. 29. Computer Institute for Social Science Research, Michigan State University, 1968. McQuitty, Louis L. "The Mutual Development of Some Theories of Types and Some Pattern Analytic Methods." Presidential address, The American Psychological Association, Chicago, Illinois, September, 1965. Morris, John. "Rank Correlation Coefficients." Techni- cal Report No. 47. Computer Institute for Social Science Research, Michigan State University, 1967. Price, Leighton A. "Hierarchical Clustering Based on a Criterion of Largest Average Within-cluster Simi— larity." Computer Institute for Social Science Research, Michigan State University, 1969. Rokeach, Milton. "The Nature of Attitudes." l Inter- national Encyclopedia of the Social Sciences 449 (1968). Rummel, R. J. "Understanding Factor Analysis."‘ 11 The Journal of Conflict Resolution 446 (December, 1967). 289- 290 Schubert, Glendon. "Ideologies and Attitudes, Academic and Judicial." 29 Journal of Politics 3 (February, 1967). "The 1960 Term of the Supreme Court: A Psycho- logical Analysis." 56 American Political Science Review 90 (March, 1962). Spaeth, Harold. "An Analysis of Judicial Attitude in the Labor Decisions of the Warren Court." 25 Journal of Politics 290 (May, 1963). "An Approach to the Study of Attitude Differ— ences as an Aspect of Judicial Behavior." 5 Mid- West Journal of Political Science 165 (May, 1961). . "Description of Proposed Research." Michigan State University, 1967. "Judicial Power as a Variable Motivating Supreme Court Behavior." 6 Midwest Journal of Political Science 54 (February, 1962). . "Unidimensionality and Item Invariance in Judicial Scaling." 10 Behavioral Science 290 Williams, A. "Factor Analysis." Technical Report No. 34. Computer Institute for Social Science Re- search, Michigan State University, 1967. Ulmer, Sidney. "The Analysis of Behavior Patterns on the United States Supreme Court." 22 Journal of Politics 629 (November, 1960). "Quantitative Analysis of the Judicial Pro- cesses: Some Practical and Theoretical Applica- tions." 28 Law and Contemporary Problems 164 (Winter, 1963). . "Toward a Theory of Subgroup Formation in the United States Supreme Court." 27 Journal of Politics 133 (February, 1965). Books Anderson, Lee F., et a1. Legislative Roll—Call Analysis. Evanston, Illinois: Northwestern University Press, 1966 o 291 Cohen, Arthur R. Attitude Change and Social Influence. New York: Basic Books, Inc., 1964. Coombs, Clyde H. A Theory of Data (Chapters 10-12). New York: John Wiley and Sons, Inc., 1964. Festinger, Leon. A Theory of Cognitive Dissonance. Stanford, California: Stanford University Press, 1957. Rays, William L. Statistics for Psychologists. New York: Holt, Rinehart and Winston, 1963. Katz, Daniel, and Kahn, Robert L. The Social Psychology of Organizations. New York: John Wiley and Sons, Inc., 1966. Kerlinger, Fred N. Foundations of Behavioral Research. New York: Holt, Rinehart and Winston, Inc., 1966. Schubert, Glendon, ed. Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally and Co., 1964. The Judicial Mind. Evanston, Illinois: North- western University Press, 1965. Siegel, Sidney. Nonparametric Statistics for the Be- havioral Sciences. New York: McGraw-Hill Book Co., Inc., 1956. Stouffer, S. A., et a1. Measurement and Prediction. Vol. IV. New York: John Wiley and Sons, Science Editions, 1950. BIBLIOGRAPHY: SUBSTANTIVE CONTENT Articles Arnold, Thurman W. "Trial by Combat and the New Deal." 47 Harvard Law Review 913-47 (April, 1934). Bicklé, Henry Wolf. "Mr. Justice Brandeis and the Regu— lation of Railroads." 45 Harvard Law Review 4-32 (1931-32). Branden, )eorge D. "The Search for Objectivity in Con- stitutional Law." 57 Yale Law Journal 571-94 (February, 1948). Butler, Pierce. "Some Opportunities and Duties of Lawyers." 9 American Bar Association Journal 583- 87 (September,’l923). Cardozo, Benjamin N. "Justice Holmes." 44 Harvard Law Review 685-88 (1930-31). "Charles Evans Hughes' Address at the Annual Meeting of the ABA." 16 American Bar Association Journal 626—30 (1930). "Chief Justice Hughes Addresses Judicial Conference of 4th Circuit." 18 American Bar Association Journal 445-48 (1932). Cole, Kenneth C. "The Role of the Senate in the Con- firmation of Judicial Nominations." 28 American Political Science Review 875-94 (October, 1934). Collier, Charles S. "Judicial Bootstraps and the General Welfare Clause: The AAA Opinion." 4 George Washington Law Review 211-42 (1936). Corwin, Edward S. "Congress's Power to Prohibit Com- merce: A Crucial Constitutional Issue." 18 Cornell Law Quarterly 477-506 (June, 1933). Cushman, Robert E. "Civil Liberties." 42 American Political Science Review 42-52 (February, 1948). 292 293 Cushman, Robert E. "Constitutional Law in 1935-36." 31 American Political Science Review 253—79 (April, 1937). Dodd, Walter F. "United States Supreme Court 1936-46." 41 American Political Science Review 1 (February, 1947). Dowling, Noel T. "The Methods of Mr. Justice Stone in Constitutional Cases." 41 Columbia Law Review 1160—81 (November, 1941). Dowling, Noel T; Cheatham, Elliott; and Hale, Robert. "Justice Stone and the Constitution." 36 Columbia Law Review 351-81 (1936). Edgerton, Henry W. "The Incidence of Judicial Control Over Congress." 22 Cornell Law Quarterly 299-348 (April, 1937). Ellingwood, Albert R. "The New Deal and the Constitu- tion." 28 Illinois Law Review 729-51 (February, 1934). Fite, Katherine, and Rubinstein, Louis. "Curbing the Supreme Court — State Experiences and Federal PrOposals." 35 Michigan Law Review 762-88 (1937). Fraenkel, Osmond. "What Can Be Done About the Constitu- tion and the Supreme Court?" 37 Columbia Law Review 212-26 (February, 1937). Frankfurter, Felix. "The Administrative Side of Chief Justice Hughes." 63 Harvard Law Review 1—4 (Nov- ember, 1949). . "Mr. Justice Brandeis and the Constitution." 45 Harvard Law Review 33-105 (1931-32). . "Mr. Justice Cardozo." 24 American Bar Associa- tion Journal 638-39 (1938). Frankfurter, Felix, and Landis, James M. "The Business of the Supreme Court at October Term 1931." 46 Harvard Law Review 226-6O (November, 1932). Frankfurter, Felix, and Hart, Harvey M., Jr. "The Business of the Supreme Court at October Term 1932." 47 Harvard Law Review 245-97 (November, 1933). 294 Frankfurter, Felix, and Hart, Harvey M., Jr. "The Business of the Supreme Court at October Term 1933." 48 Harvard Law Review 238-81 (1934-35). . "The Business of the Supreme Court at October Term 1934." 49 Harvard Law Review 68-107 (1935-36). Frankfurter, Felix, and Fisher, Adrian S. "The Business of the Supreme Court at October Terms, 1935 and 1936." 51 Harvard Law Review 577-637 (1937-38). Hart, Henry M., Jr. "The Gold Clause in U. S. Bonds." 48 Harvard Law Review 1057-99 (May, 1935). Herman, Samuel. "Economic Predilection and the Law." 31 American Political Science Review 821-41 (October, 1937). Konefsky, Samuel J. "Review of Pusey's Charles Evans Hughes." 61 Yale Law Journal 765-75 (1952). Lerner, Max. "The Supreme Court and American Capitalism." 42 Yale Law Journal 668-701 (1933). McElwain, Edwin. "The Business of the Supreme Court as Conducted by Chief Justice Hughes." 63 Harvard Law Review 5-26 (November, 1949). Mason, Alpheus T. "The Conservative World of Mr. Justice Sutherland, 1883-1910." 32 American Political Science Review 443-77 (June, 1938). "Labor, the Courts, and Section 7(A)." 28 American Political Science Review 999-1015 (Dec- ember, 1934). "Mr. Justice Brandeis: Exponent of Social In- telligence." 25 American Political Science Review 965-79 (1931). "Mr. Justice Cardozo." 52 Harvard Law Review 353-489 (January, 1939). "Mr. Justice Roberts." 104 University of Pennsylvania Law Review 311-79 (December, 1955). The New York Times. Brandeis: Obituary, October 6, 1941. . Butler: Obituary, November 16, 1939. Cardozo: Obituary, July 10, 1938. 295 The New York Times. Hughes: Obituary, August 28, 1948. McReynolds: Obituary, August 26, 1946. Roberts: Obituary, May 18, 1955. Stone: Obituary, April 23, 1946. Sutherland: Obituary, July 19, 1942. Van Devanter: Obituary, February 9, 1941. Oppenheimer, Reuben. "The Supreme Court and Administra- tive Law." 37 Columbia Law Review 1-42 (January, 1937). Ribble, F. D. G. "The Constitutional Doctrines of Chief Justice Hughes." 41 Columbia Law Review 1190- 1210 (November, 1941). Schubert, Glendon A. "The Constitutional Polity." (The Gaspar 0. Bacon Lectures on the Constitution of the United States to be delivered at Boston Uni- versity, February 17-19, 1969.) . "The Theory of 'The Public Interest' in Judicial Decision-Making." 2 Midwest Journal of Political Science 1-25 (February, 1958). Stone, Harlan F. "The Common Law in the United States." 50 Harvard Law Review 1-26 (1936). "Fifty Years' Work of the United States Su reme Court." 14 American Bar Association Journal 28-36 (1928). Books Alfange, Dean. The Sppreme Court and the National Will. Garden City, New Jersey: Doubleday, Doran and CO.’ Inc., 1937' Beard, Charles and Mary R. The Rise of American Civiliza- tion. Vol. III: America in Midpassage. New York: The Macmillan Co., 1939. Bickel, Alexander M. The Unpublished Opinions of Mr. Justice Brandeis. Cambridge, Massachusetts: The Belnap Press of Harvard University Press, 1957. 296 Biographical Directory of the American Congress. Washington, D.C.: Government Printing Office, 1961. Brant, Irving. Storm Over the Constitution. Indiana- polis: The Bobbs-Merrill Co., 1936. Brown, Francis J. The Social and Economic Philosophy of Pierce Butler. The Catholic University of America Studies in Sociology, Vol. XIII. Washing— ton, D.C.: The Catholic University of America Press, 1945. Hunzel, John H. The American Small Businessman. New York: Alfred A. Knopf, 1962. Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale University Press, 1921. The Paradoxes of Legal Science. New York: Columbia University Press, 1928. Carr, Robert K. Democracy and the Supreme Court. Norman: University of Oklahoma Press, 1936. . Supreme Court and Judicial Review. New York: Rinehart and Co., 1942. Corwin, Edward S. The Commerce Power versus States Ri hts. Princeton: Princeton University Press, 1936. . Constitutional Revolution, Ltd. Claremont, California: Claremont Colleges, 1941. . The Twilight of the Supreme Court. New Haven: Yale University Press, 1944. Curtis, Charles P. Lions under the Throne. Boston: Houghton Mifflin Co., 1947. Danelski, David. A Supreme Court Justice is Appointed. New York: Random House, 1964. Dorsey, Emmett E. "The Evolution of the Concept of the Welfare State in the United States since 1890." Unpublished Ph.D. dissertation, The American Uni- versity, 1953. Duane, Morris. The New Deal in Court. Philadelphia, Pennsylvania: George T. Bisel Co., 1935. 297 Early, Stephen. "James Clark McReynolds and the Judicial Process." Unpublished Ph.D. dissertation, Uni- versity of Virginia, 1954. Eriksson, Erik. The Supreme Court and the New Deal. Rosemead, California: The Rosemead Review Press, 1940. Eriksson, Erik, and Steele, Trent. Constitutional Basis for Judging the New Deal. Rosemead, California: The Rosemead Review Press, 1936. Ewing, Cortez. The Judges of the Supreme Court, 1789- 1937: A Study of Their Qualifications. Minneapo- lis: University of Minnesota Press, 1938. Fine, Sidney. Laissez-Faire and the General-Welfare State. Ann Arbor: University of Michigan Press, 1956. Frankfurter, Felix, ed. Mr. Justice Brandeis. New Haven: Yale University Press, 1932. Frankfurter, Felix, and Landis, James M. The Business of the Supreme Court. New York: The Macmillan Co., 1928. Goodhart, Arthur L. Five Jewish Lawyers of the Common Law. London: Geoffrey Cumberlege, Oxford Uni- versity Press, 1949. Haines, Charles Grove. The American Doctrine of Judicial Supremacy. Berkeley, California: University of California Press, 1932. Hughes, Charles Evans. The Supreme Court of the United States: Its Foundations, Methods and Achievements. New York: Columbia University Press, 1928: Jackson, Robert H. The Struggle for Judicial Supremacy. New York: Alfred A. KnOpf, 1949. The Supreme Court in the American System of Government. Cambridge: Harvard University Press, 1955. Konefsky, Samuel J. Chief Justice Stone and the Supreme Court. New York: The Macmillan Co., 1945. . The Legapy of Holmes and Brandeis. New York: The Macmillan Co., 1956. 298 Lawrence, David. Nine Honest Men. New York: D. Appleton-Century Co., 1936. Lerner, Max. America as a Civilization. New York: Simon and Schuster, 1957. ' . Ideas for the Ice Age. New York: The Viking Press, 1941. Liebman, Charles, ed. Directoronf American Judges. Chicago, Illinois: American Directories, A Corporation, 1955. McCune, Wesley. The Nine Young Men. New York: Harper and Brothers, Publishers, 1947. Mason, Alpheus T. Brandeis: A Free Man's Life. New York: The Viking Press, 1956. . Harlan Fiske Stone: Pillar of the Law. New York: The Viking Press, 1956. The Supreme Court from Taft to Warren. Baton Rouge: Louisiana State University Press, 1958. The Supreme Court: Vehicle of Revealed Truth or Power Group, 1930-1937. Boston, Massachusetts: Boston University Press, 1953. Murphy, Walter F. Elements of Judicial Strategy. Chicago and London: University of Chicago Press, 1964. The National Cyc10paedia of American Biography. New York: James T. White and Company. Paschal, Joel F. Mr. Justice Sutherland: A Man Against the State. Princeton, New Jersey: Princeton University Press, 1951. Pearson, Drew, and Allen, Robert S. The Nine Old Men. Garden City, New Jersey: Doubleday, Doran and Co., Inc., 1937. Perkins, Dexter. Charles Evans Hughes and American Demo- cratic Statesmanship. Boston: Little, Brown and Co., 1956. Pritchett, C. Herman. The American Conptitution. New York: The McGraw-Hill Book Co., Inc., 1959. 299 Pritchett, C. Herman. The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947. New York: The Macmillan Co., 1948. Prothro, James W. The Dollar Decade: Business Ideas in the 1920's. Baton Rouge: Louisiana State Uni- versity Press, 1954. Pusey, Merlo J. Charles Evans Hughes. 2 vols. New York: The Macmillan Co., 1951. . The Supreme Court Crisis. New York: The Macmillan Co., 1937. Roberts, Owen J. The Court and the Constitution. Cambridge, Massachusetts: Harvard University Press, 1951. Rodell, Fred. Nine Men. New York: Random House, 1955. Schlesinger, Arthur M. The New Deal in Action 1933-1939. New York: The Macmillan Co., 1940. Schmidhauser, John R. The Supreme Court as Final Arbiter in Federal-State Relations 1789-1957. Chapel Hill: University of North Carolina Press, 1958. Schubert, Glendon A. Constitutional Politics. New York: Holt, Rinehart and Winston, Inc., 1960. Judicial Policy-Making. Chicago: Scott, Foresman and Co., 1965. Quantitative Analysis of Judicial Behavior. The Free Press of Glencoe, Illinois: Bureau of Social and Political Research, Michigan State University, 1959. Schuyler, Robert L., ed. Dictionary of American Biography. New York: Charles Scribner's Sons, 1958. Schwartz, Bernard. The Supreme Court: Constitutional Revolution in Retroppect. New York: The Ronald Press Co., 1957. Spaeth, Harold. The Warren Court. San Francisco: Chandler Publishing Co., 1966. 300 Sprague, John D. Voting Patterns of the United States Supreme Court. Indianapolis: The Bobbs-Merrill Co., Inc., 1968. Sutherland, George. Constitutional Power in World Affairs. New York: Columbia University Press, 1919. Swisher, Carl B. American Constitutional Development. New York: Houghton Mifflin Co., 1954. The Growth of Constitutional Power in the United States. Chicago: University of Chicago Press, 1947. U. S. Attorney General. Annual Report, 1933-34. Washing- ton, D.C.: GovernmentIPrinting Office, 1933. U. S. Reports. Lawyers' Editions. Warren, Charles. The Supreme Court in United States History. Vol. I: 183611918. Boston: Little, Brown and Co., 1926. Westin, Alan F., ed. An Autobiography of the Supreme Court. New York: The Macmillan Co., 1963. Ziegler, Benjamin M., ed. The Supreme Court and American Economic Life. Evanston, Illinois: Row, Peterson and Co., 1962. IIHIWIHIIIHIIH 03169 2555 4 3 1293