Comparing the Policy Positions of Supreme Court Justices from Different Periods

Abstract

T HHE small size of the Supreme Court creates a number of difficulties for analysis of decision making on the Court. One of these difficulties concerns explanation of differences among justices in their voting behavior. The membership of 435 in the House of Representatives allows sophisticated analysis of characteristics associated with individual voting behavior. In contrast, the Supreme Court's membership of 9 largely precludes even the most elementary analysis of such characteristics. Largely for this reason, some students of the Court have undertaken analyses that go beyond the nine justices who sat at a single time to include all the justices who served during a period of several decades. C. Neal Tate (1981) and S. Sidney Ulmer (1986), for instance, have taken this approach in examining relationships between personal background characteristics and voting behavior (see also Handberg 1986). The benefit of this approach in increasing the number of justices to analyze is counterbalanced by a problem of comparability. The most systematic basis for comparisons among justices, and the one that scholars typically use, is their voting support for particular values or types of claims made by litigants. However, since justices who sat during different parts of a period faced different sets of cases, such measures of their voting behavior are not fully comparable. Differences among justices in support for certain claims or values might result from differences in the case stimuli to which they responded rather than from true differences in their policy positions. If one justice supported challenges to government economic regulation more often than another, that difference might stem at least in part from the greater difficulty of supporting such challenges in the cases that the second justice faced.