Individual Justices Research Articles

Supreme Court decision-making: new institutionalist approaches

What influences decisions of the US Supreme Court? For decades social scientists focused on the ideology of individual justices. This text moves beyond that focus by exploring how justices are influenced by the distinctive features of courts as institutions and their place in the political system. Drawing on interpretive-historical institutionalism as well as rational choice theory, a group of scholars consider such factors as the influence of jurisprudence, the unique characteristics of supreme courts, the dynamics of coalition building, and the effects of social movements.

Should Justices Ever Switch Votes?: Miller v. Albright in Social Choice Perspective

This article will consider the implications of a rare, but conceptually significant, phenomenon in Supreme Court decision making. The Supreme Court has occasionally issued opinions in which the justices' own assessments of the relationships between and among identified dispositive issues, and the votes cast by the individual justices over those issues, demonstrate a logical voting path leading to the dissenting result. In an even rarer group of just three known cases, one or more justices has attempted to avoid the undesirable consequence of a Supreme Court ruling that is in a significant sense at odds with itself by conceding to a contrary majority on one dispositive issue, thus joining as part of a majority on the remaining dispositive issue or issues. This form of vote switching produces its own anomaly, albeit one that affects the internal logic of the opinion of the vote-switching justice, rather than one that affects the aggregate relationship between the underlying issue resolutions and the judgment for the Court as a whole. The justice who concedes to a contrary majority avoids the anomaly of an opinion in which the justices' collective resolution of identified dispositive issues leads to the opposite holding, but does so by casting a judgment vote that is inconsistent with the internal logic of his own opinion. By evaluating the Supreme Court's most recent voting-anomaly case, one which did not produce a vote switch, namely Miller v. Albright, this article will consider first, the conditions that give rise to the voting anomaly, and second, the conditions under which we could predict that individual justices would or would not be inclined to concede to a contrary majority on an underlying dispositive issue. This article develops a model, based upon the theory of social choice, which helps to distinguish the characteristics that underlie those rare cases which have produced vote switches from those underlying the more common, but still infrequent overall, cases in which in spite of a voting anomaly, no justice has chosen to switch his vote. The article concludes with some insights into why, despite the presence of a voting anomaly, such a vote switch did not occur in Miller itself.

Judicial Bookshelf

Judicial Bookshelf D. Grier Stephenson, Jr. Systematic study ofthe Supreme Court began little more than a century ago as history, law, and political science emerged as professional academic disciplines. The result has been an ex­ panding variety of approaches and methodologies designed to explain both the what and the why of the Court’s decisions. Judicial scholarship continues to explore the contributions of individual Justices, and through them the effects ofthe Bench and the rest ofthe political system on each other. Animated by twentieth-century empiricism, one category ofCourt scholarship is thejudicial process itself—that is, the business, procedure, and impact of courts. It may depict one or more elements ofthat process as illustratedby a series ofcases, or virtually all elements ofthe process as illustrated by a single case. The latter type is commonly referred to as a “case study” as it portrays judges as actors on the political and legal stage. Applied to the Supreme Court, case stud­ ies have become a major part of the literature only since the late 1950s. In the first edition of one undergraduate textbook on American con­ stitutional law published in 1954, the several hundred entries of “suggested readings” in­ cluded barely a single one that could fairly be labeled a case study.1 When one of the first collections ofarticle-lengthjudicial case stud­ ies was published in 1963, the co-editors de­ voted part of the introductory chapter both to a defense of the value of the case study as a tool in understanding “constitutional politics” and to a description ofwhat a properly designed case study should encompass. [T]he case must be reconstructed in all its complexity, background, color, conflict, strategic dilemmas, and rami­ fications. The real parties to disputes and how their disputes arose; the struggles in private and public arenas JUDICIAL BOOKSHELF 139 that preceded the transfer of the dis­ pute to the courts;... the strategic and doctrinal battles during the litigation process; the way in whichpolitical and private forces affect the litigation as it progresses through the courts;... the impact ofpublic opinion upon theju­ diciary in its consideration of cases and its scope of decision; the re­ sponse of the parties, government, and the public to the judicial rulings ...; the compliance, noncompliance, or modification of judicial rulings by elected and appointed officials;... — these and a host of other questions must be explored in order to achieve a sophisticated understanding of what the role ofthe courts is in contempo­ rary America.2 Once novel,judicial case studies have become commonplace. The expectation now is that they treat “all levels of courts and all kinds of law as integral parts of the politics ofpolicy mak­ ing.”3 Studies of a single constitutional case or group of similar cases are intellectually useful in at least three ways. First, they are descrip­ tive. As analytical narratives, case studies pic­ ture all or part ofthe judicial process at work, from the origins of a controversy to its resolu­ tion, including its impact on the larger politi­ cal system and on future litigation.4 Second, case studies are efficient. Since it is not feasible for every case to be examined in great detail, readers makejudgments about re­ ality from a much smaller number of close-up encounters, inferring the whole from the part. A single case study illustrates how thejudicial process can work; a series of case studies al­ lows conclusions fairly to be drawn about how the judicial process ordinarily does work. Third, case studies are demonstrative. They may lay bare important, but sometimes overlooked, ingredients in constitutional inter­ pretation. One ofthese is the Court’s own case selection process: deciding what to decide; another might be the role of self-interest, of timing, or even of chance. Moreover, because ofthe particular issues that litigationmaypose, the case study can be a window on complex cultural and intellectual forces that ordinarily seem far removed from a courtroom but which may lend the litigation its significance as well as its notoriety. Five recently published vol­ umes reflect the enduring utility of case stud­ ies and suggest that this genre of Court litera­ ture continues to thrive. Jay Stewart’s Most Humble Servants5 is a meticulous...

Of Time and Consensual Norms in the Supreme Court

Theory: We argue that levels of concurrence and dissent on the U.S. Supreme Court are functions of norms. These norms arise from, and are influenced by, the behaviors of the individual justices, including the actions of the chief justices. In turn, they cause concurrences and dissents to fluctuate around a common level. Hypotheses: If consensual norms are a substantial influence on the behavior of the Court, the long-run extent of concurrence and dissent on the Court will covary substantially, and will do so to varying degrees under different chief justices. Methods: To test our hypotheses, we use cointegration and error-correction analyses of the number of Supreme Court cases from 1800 to 1991 with concurring and dissenting opinions. Because of the dramatic increase in concurrences and dissents during the 1940s, we make use of recently-developed methods for detecting cointegrating relationships in the presence of structural breaks. Results: Consistent with our expectations, dissents and concurrences move together over time; thus consensual norms appear to influence substantially both concurrences and dissents on the Court. The effects of such norms vary in the long term under different Chief Justices.

The Consistency of the U.S. Supreme Court's "Pro-State" Bloc

This article examines bloc of U.S. Supreme Court justices that produced pro-state decisions in United States v. Lopez, Seminole Tribe of Florida v. Florida, and Printz v. United States. We are concerned primarily with bloc's coherence and consistency across other of interest to state governments over 1994-1996 terms. The labeling of individual justices and Court in general as pro-state depends in part on subjected to analysis; greater inclusiveness of list of cases of interest to states, the more bloc seems to fray and less coherent Court's direction.

The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice

In this paper, we explore linkages between electoral politics and judicial voting behavior in the context of models that take into account personal, contextual, institutional, and case-related influences on courts. Using probit (ordered and binary), we examine the votes cast in death penalty decisions by supreme court justices in eight American states from 1983 through 1988 We anticipate and find evidence that institutional features are prominent in shaping the distribution of institutional preferences Fundamentally, justices have predispositions that are consistent with the states' electoral and ideological environments Moreover, these institutional arrangements subsequently enhance or restrict opportunities for individual members, once selected, to exhibit their predispositions Personal preferences notwithstanding, individual justices' support for the death penalty is affected by competitive electoral conditions and institutional arrangements that create linkages with the political environment Finally, ...

The Supreme Court and constitutional theory, 1953-1993

Ronald Kahn greatly revises our understanding of Supreme Court decision making and its relation to constitutional theory in the eras of chief justices Earl Warren, Warren Burger, and William Rehnquist. In the process, he refutes the longstanding stereotypes of an activist Warren Court trying to legislate individual rights and of a visionless Burger Court hiding in its predecessor's shadows. Kahn contends that the dominant view of the Supreme Court as just another political institution is incorrect. That view depicts an unprincipled court wavering before external politics and public opinion or bending to the political agendas of individual justices. Kahn counters that justices throughout the postwar epoch, while well aware of the political environment, have consistently relied upon legal precedent and constitutional principles-especially in cases relating to individual rights and popular sovereignty. The Burger Court in particular, Kahn argues, had both a coherent vision and a highly complex understanding of malfunctions in the American polity and of fundamental rights in the Constitution. He cites as salient examples the Burger Court's controversial decision in Roe v. Wade and its decisions regarding gender equality, religious freedom, and the right to education of all children, even illegal aliens. He suggests that this same sensitivity, despite enormous popular and political pressures, has been demonstrated by the Rehnquist Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Kahn effectively reveals how the Supreme Court is influenced by its ongoing dialogue with scholars, judges, journalists, and others who debate the connections between constitutional law and democratic government. His critique of works by such prominent theorists as Robert Dahl, Martin Shapiro, Vincent Blasi, Anthony Lewis, Archibald Cox, Alexander Bickel, Herbert Wechsler, John Hart Ely, and Laurence Tribe, among others, provides valuable insights into this exchange between the court and its interpretive community. His chapter on the new civic republicans like Michael Perry, Mark Tushnet, and Sanford Levinson, is especially provocative in its analysis of a potentially more productive guide for jurisprudence in the 1990s. Combining theoretical sophistication with a fundamental comprehension of our nation's political institutions, Kahn's study should help demystify for scholars and students alike the workings of the Court and its place in our democracy.

Ideological Patterns in the Justices' Voting in the Burger Court's Business Cases

Recent research has shown that economic liberalism no longer explains the Burger Court's business decisions. To discover what does, Hagle and Spaeth (1992) systematically analyzed the universe of Burger Court business decisions and found that a small set of ideological variables, which they labeled "instrumental libertarianism" accounted for most of these decisions. To supplement our 1992 study, we have constructed optimal models for the 10 most frequently participating Burger Court justices. These vary little from that of the Court. The three most antibusiness justices support governmental regulation, as do the two probusiness states' righters. Three justices are libertarians, one is a national supremacist, and one displays no distinctive behavior on any of our independent variables. In support of their regulatory preferences, the individual justices display varying support for agency action and judicial activism/restraint.

The Judicial Bookshelf

The Judicial Bookshelf D. Grier Stephenson, Jr. Perhaps the dominant characteristicofAmeri­ can law is the struggle between constancy and change.1 The same observation applies to the Supreme Court of the United States. The Court serves as custodian ofthe values the Constitution embodies but also “feels the touch of public opinion,” as James Bryce delicately phrased the Justice Louis Brandeis as a young man. He once commented that Justices were “almost the only people in Washington who do their own work.” tension. Accordingly, the Court changes “its colour, i.e., its temper and tendencies, from time to time, according to the political proclivities of the men who composed it.”2 The differences wroughtby these varying“proclivities” mean that understanding the Supreme Court has long been aidedby studyingthe individualswhohavegraced its bench. One begins with a recognition of the signifi­ cance ofthe questions with whichthe Court deals. Whilethe Courthas confrontedpoliticallycharged issues since Chief Justice John Jay’s time, the proportion ofsuch cases has been much higher in the twentieth century than in the nineteenth. For example, constitutional cases, always among the most contentious, occupied only about six percent ofthe docket in 1875, compared to about halfthe docket in recent years. Thus, the particular ideo­ logical complexion of the bench has come to matter even more in the political struggles beset­ ting the nation. The length of service of those who become Justices also merits attention. Once named to the bench, the average Justice will serve longer than any President. Through 1992, the forty American Presidents (counting all repeaters and the split presidency of Grover Cleveland only once) have selected only 106 Justices (counting repeaters and those promoted from Associate to Chief Justice only once and omitting the several confirmed nominees who declined to accept). Beginning with President Washington’s appointees, but ex­ cluding the nine members of the Court sitting in 1992, the average period of service for ninety- 110 JOURNAL 1992 seven Supreme Court Justices has been 15.8 years, and the median has been 15 years, easily besting the longest presidential tenure, Franklin D. Roosevelt’s 12.1 years. For Justices ap­ pointed since 1900, the average number ofyears (22.1) exceeds the average (18) for Justices ap­ pointed between 1800 and 1899 inclusive. By contrast, the median (17 years) for the latter group exceeds that ofthe former (16). The short tenures ofmost Justices appointed prior to 1800 partly account for the slightly lower average for the entire time.3 A third reason which inclines study of the Courttoward its Justices is the role ofthe Justices themselves as decisionmakers. True, recentstud­ ies havenotedthe increasedrelianceby almostall members ofthe Court on their clerks (the “junior supreme court,” as Justice Douglas once referred to them) both in making recommendations on which cases to accept for review and in drafting opinions.4 This development seemingly contra­ dicts the observation made long ago by Justice Brandeis that “the reason the public thinks so much ofthe Justices... is that they are almost the only people in Washington who do their own work.”5 Yet,thetwo observationsmaynotbethat far apart. Individual Justices may continue to do a great deal more of their “own work” than do their counterparts in the other branches of the federalgovernment.6 Whiletherole oflaw clerks and other staffis surely more encompassing than even a half century ago, the Court is unique among Washington’s political institutions in the identity between the Justices and the Court’s decisions. The same can be said only occasion­ ally today ofPresidents, Senators and Represen­ tatives. Witness the scarcity ofbooks about even the most prominent legislators since 1960, all the while there has been an outpouring of books about Congress. The proliferation of both per­ sonal and committee staff has made it increas­ ingly difficult to separate lawmakers from their assistants and advisers.7 Witnessthe books about Presidents which, perforce, must be books about administrations. Presidentshave the leadingpart, to be sure, but it is a leading part in a cast of dozens (at least). The contrast is revealing. Scholars largely rely on judicial opinions for insights into a Justice’s jurisprudential leanings; recentpresidential and congressional documents and letters may be suspect as reliable indicators of a particular President’s...

The Vinson Court Era: The Supreme Court's Conference Votes; Data and Analysis

This is an analysis of the US Supreme Court during the tenure of Fred Vinson who served as Chief Justice from 1946 to 1953. During this period, the Court was dominated by such justices as Black, Douglas and Frankfurter, and was sharply divided on several important issues, including the rights of labour unions, communists, religious groups and racial minorities. To a large extent, the history of the Vinson Court is a mirror of US history during the post-war period that encompasses Truman's presidency and the beginning of Eisenhower's. The door to the Court's conferences has always been closed to everyone except to the sitting justices. This book seeks to partially open this door by making the secret conference votes under Fred Vinson available. Here are not only the votes in certain selected or important cases, but 44,681 votes cast by the individual justices in 2501 different cases. The information was gathered from all the surviving collections of the justices' private papers that are located in five separate libraries, from Texas to Massachusetts. The dataset is presented in a format that can be used by scholars to re-examine the assumptions and speculations about the Court's secret deliberations which, until now, could not be systematically tested.

Justice Sandra Day O'Connor and the Supreme Court's Reaction to Its First Female Member

On July 7, 1981, President Ronald Reagan fulfilled one of his campaign promises: He appointed Judge Sandra Day O'Connor of the Arizona Court of Appeals to be the first female Justice to serve on the U.S. Supreme Court. Mostearly commentators agreed that Judge O'Connor fit the conservative mold of other Reagan appointees. Nevertheless, women's groups universally hailed her appointment as a major breakthrough for women in general and for the advancement of women's rights through the courts in particular. The simple purpose of this modest paper, which is part of a larger study, is to address the question of whether those expectations were correct. More specifically, we examine all 55 sex discrimination cases decided by the Burger Court-both before and after the appointment of Justice O'Connor-to determine her impact on the court as a whole and upon individual Justices.

Determinants of the Amount of Time Taken by the Vinson Court To Process its Full-Opinion Cases

Determinants of the Amount of Time Taken by the Vinson Court To Process its Full-Opinion Cases Jan Palmer and Saul Brenner To Process Its Full-Opinion Cases Isitpossible to identifyand to measure some of the factors that determine the amount of time needed by the Supreme Court to proc­ ess a full-opinion case? Or, are the cases so heterogeneous that it is impossible to find any consistent predictors of how much time will pass between the conference vote on-the-merits and the announcement of the official opin­ ion? To answer these questions, we investigate the Vinson Court (the October 1946 Term through the October 1952 Term). This Court is chosenbecause ofthe availability of a complete dataset containing information necessary to test a number of hypotheses: the individual Justice’s conference votes, the dates of these votes, and the names of the Justices who were assigned or reassigned the responsibility for writing the majority opinion.1 Although the number of cases docketed has increased, the Supreme Court’s procedures have not changed substantially since Vinson’s tenure. Thus, this study of the Vinson Court not only provides insight into the decisionmaking of that Court but also generates hypotheses that can be re­ tested when complete and reliable conference vote and other data from later periods become available. Previous Studies Observers ofthe Supreme Court have long wondered how Justices spend their time. This question is related to many others: Is the Court overworked? Should its jurisdiction be altered? Is it deciding too many or too few cases? Has the steadygrowth in the number of cases docketed each term reduced the Court’s productivity? The Justices do not publish time charts and most of their activities are safely hidden from public view. Thus, scholars are forced to engage in educated guessing to an­ swer these questions. Hart2 provided the first appraisal of how Justices of the modern Court spend their time. He estimated the amountsoftime needed to complete various activities and inferred that the Court was overworked. Hart’s study was criticized by Justice Douglas who claimed that the Court’s caseload was not a burden.3 But the ReportoftheStudy Group on the Caseloadofthe Supreme Court4 (frequently known as the “Freund Report”), agreed with Hart’s finding that the Court was overworked. Casper & Posner5 extended Hart’s analysis and concluded that the amount of time spent screening cases had in­ creased but that the Court was not overworked. All these studies examined the typical Justice rather than the Court as a whole. Rathjen6 took a very different approach in his analysis ofthe timeneededtoprocess fullopinion cases. Rather than studying individual Justices, he examined the Court as a whole for the 1964-1973 Terms and concluded that proc­ essing time was positively related to impor­ tance, level ofdissension, and whether the case dealt with “Freedom and Equality” issues. He also found that business issues and cases in which a liberal Justice wrote the opinion were processed more quickly. LikeRathjen, we examinethe Court as VINSON COURT 143 a whole. We retest some ofhis findings and are able to test additional hypotheses because we have the advantage of using data derived from the Justices’ private papers to which Rathjen did not have access. Processing Full-Opinion Cases on the Vinson Court Almost all cases arrived at the Vinson Court either by a writ ofappeal or as a petition for a writ of certiorari. Noting probable juris­ diction for an appeal or granting a certiorari petitionrequired positive votesfrom four ofthe nine Justices. Most cases were denied review, which meant that the decision of the lower court remained the law in the case. If a case was accepted for review, the litigants submitted written briefs after which the case was argued orally before the Court. A few days later, there was a secret conference vote at which time the Justices voted either to affirm or reverse the decision of the lower court. The Court sometimes had additional conference votes on-the-merits if the original conference vote resulted in an equally divided Court or if the opinion writing process uncov­ ered new issues or changed several minds. After the conference vote, the Chief Justice, if he...

Courting Confusion with Multiple Opinions in a Land Use Case

Abstract When the nine Justices of the U.S. Supreme Court write five separate opinions, as they did in Metromedia v. City of San Diego, 453 U.S. 490 (1981), 33 ZD 238, the Court fails in its primary responsibility to provide an authoritative statement of legal principle to govern and guide the lower courts, governments, citizens, and the bar. The growing tendency of the U.S. Supreme Court, and many of the highest state courts as well, to forsake majority opinions—and indulge in disconnected concurring expressions by individual Justices—clearly weakens the effectiveness of American courts.

From Bakke to Fullilove Has the Supreme Court Finally Settled the Affirmative Action Controversy?

The affirmative action controversy over quotas is examined in light of recent Supreme Court decisions in the Bakke and Fullilove cases. Through important affirmative action courts decisions, the author summarizes the statutory and constitutional background of quotas, and the various legal tests used by individual Justices in interpreting cases in the area of affirmative action. The major finding is that the Supreme Court has not broken new ground in recent court decisions. Many important quota issues remain to be resolved.

The Burger Court and Unspecified Rights: On Protecting Fundamental and Not-So-Fundamental "Rights" or "Interests" Through a Flexible Conception of Equal Protection

In the field of substantive or interests not specifically addressed by the Constitution's text, the Burger Court has mounted its collective steed-with individual Justices facing opposite ends-and ridden off forcefully in several directions at once. The Court now purports to limit the fundamental rights branch of modern equal protection doctrine to those cases involving restrictions on rights explicitly or implicitly guaranteed by the Constitution.'' Only in those cases and in cases involving suspect categories of classification is the strict, compelling-interest/least-restrictivealternative-means standard of scrutiny to be employed; all others require application of the more lenient rational basis equal protection formula. In practice, however, the Justices have frequently invoked rationality rhetoric-or obscured the standard of scrutiny being applied-and then subjected challenged regulations to more rigorous examination than the rational basis test would dictate.

Toward an Integration of Public Law and Judicial Behavior

THE VIEW OF JUDGES as political actors whose attitudes toward subtantive policy issues often influence their decisions is the cornerstone of judicial behavioralism. The assumption is that there is . . a kind of stare deciks underlying the Supreme Court's decisions but that it is based on personal rather than institutional precedents.' Voting records of individual justices are examined to uncover regularities in behavior and to provide the basis for inferring the attitudes of judges toward the substantive issues raised. Of course, if each justice were merely following his conscience on a case by case basis, a random, rather that a persistent, coalitional pattern of voting would emerge. Evidence derived both from observations of voting patterns and from interviews with judges seems

The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers

Great cases like hard cases, perhaps, still bad law, 1 but in the Supreme Court of the United States they often make almost no law at all. The Court divides sharply and even splinters; a majority is obtained for the judgment only on the narrowest grounds, and the result is explained and justified only in a most cryptic opinion. Individual Justices, more expansive in explaining their concurrence, justify it on grounds that do not commend themselves to their brethren and that would hardly govern any other case. And that which makes the case great or hard renders unlikely that another case will soon arise to invoke the Court's precedent. By any criteria, the case of the Pentagon Papers 2 must be deemed great or hard, or at least dramatic; surely, it represents some accident of immediate overwhelming interest which appeals to the feelings andsome will add-distorts the judgment. 3 Six Justices concurred in the judgment, and at least five of them4 joined a brief per curiam opinion. Each of the concurring Justices wrote separately, two pairs joining each other's opinion. Each of the three dissenting Justices wrote, and all of them joined in one of the dissents. Some things said by one or more Justices on one side commended themselves to one or more on the other.

Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior

IT IS IMPOSSIBLE to understand fully the work of the Supreme Court and similar appellate bodies without focusing on the crucial role of the individual justice. Supreme Court decisions are the products of the constant and forceful interaction of judicial minds and personalities, of precedents and traditions of the past and perceptions of the future, and of the conflicts and reinforcements which develop in its relationship to other political institutions. Justices are products of their environment, past and present, and it is a large part of their task to apply the values derived from these experiences to resolving cases before them. Contemporary students of the Court have articulated a number of techniques for studying the decision-making process. All are based on the assumption that the values and attitudes of individual justices are crucial determinants of decisional behavior, but each differs in its particular emphasis on the precise role which attitudes, values, or the backgrounds of the justices play in arriving at both individual and collegial determinations. In fact, the major disagreements among contemporary scholars seem to be over the relative importance of one or another component, rather than on the existence-or lackof these components.2

The Supreme Court and State Civil Liberties

NE OF THE MAJOR THEMES in recent writings about the United States Supreme Court has been its treatment of civil liberties cases. During Chief Justice Vinson's tenure much comment, pro and con, was elicited by the Court's comparatively restraintist approach to such cases. And in the years of Chief Justice Warren, as the Court has become more activist, the same writers have labored the same themes, but with the pros and the cons reversed. The attitudes and voting records of individual justices have been closely scanned to see whether they measured to the standards of the investigator; box scores have been compiled purporting to show such attitudes;' particular justices have had their attackers and defenders and more than one sitting judge has doffed his judicial halo long enough to defend himself (sometimes more effectively than his admirers). The present writer has been among those who have attacked the Vinson court and defended the Warren court;2 and with the judges and other writers he has been accused of fostering the same approach to civil liberties which did the Court so much harm when it was used in the economic sphere before 1937.3 But such charges have been often denied, and the modern-day activists are seemingly fairly well convinced that they have built up a rationale to distinguish the two types of cases which is convincing (at least to themselves): they no longer have guilt feelings about their own inconsistency on this score.4 There is, however, another question with which the defenders of activism in civil liberties have not dealt effectively as yet. This is the question involving the Fourteenth Amendment. After all, say the critics, even if you prove that the Bill of Rights should be industriously applied by the Court, the fact remains that the first eight amendments apply only to federal action; and while the due process clause of the Fourteenth Amendment has been used to extend parts of the Bill of Rights to the states, this process is really illegitimate because the clause does not logically bear such interpretation and because this amounts to the use of the nowdiscredited substantive interpretation of the clause. So another inconsistency is charged against the libertarians. The present article is an attempt to investigate such criticism and lay the groundwork (if possible) for a defense. Put simply,

Scaling Judicial Cases: A Methodological Note

Another step forward in the burgeoning legal science of court decisions is represented in this article by Dr. Ulmer of Michigan State University's Department of Political Science. Using coefficients of reproducibility and scalability, he shows how highly consistent is the position of individual Supreme Court justices concerning deprivations of civil liberties. While this note deals specifically with the application of scaling techniques to judicial materials, the methods described may be generalized to other types of political data.