10 most conservative Supreme Court Justices

San Antonio Express-News ^ | 04/30/2009

[Responsibility2nd]

1. Clarence Thomas

2. William Rehnquist

3. Antonin Scalia

4. John Roberts

5. Samuel Alito

6. Warren Burger

7. Sandra Day O’Connor

8. Lewis Powell

9. Charles Whittaker

10. Anthony Kennedy

Based on “conservative” or “liberal” votes, 1937-2006

Source: “Rational Judicial Behavior: A Statistical Study” (Richard Posner, William Landes, April 2008); usnews.com

[Responsibility2nd]

FWIW

[End Times Sentinel]

Loses total credibility with the inclusion of Sandy.

[freekitty]

That was my thought when I saw her name.

[Anitius Severinus Boethius]

Peggy Hill: And you probably think that the Supreme Court was ruined when they put a woman on it!

Hank Hill: It was! And that woman’s name was Earl Warren.

[cotton1706]

Byron White was more conservative than Lewis Powell.

[tacticalogic]

Scalia blew it when he voted to uphold Wickard v Filbun in the Gonzales v Raisch case.

[1rudeboy]

If you look more closely at Posner's/Landes' numbers White doesn't come close to Powell, and in between the two you have Whittaker, Kennedy, Harlan, Vinson, Burton, and Minton.

So while the methodology may be incorrect, this methodology doesn't even make it a toss-up.

[devere]

This list of judges is a bit of a joke.

“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”
Justice Byron White, dissenting from Roe V Wade.
JFK’s appointee was a conservative.

[Responsibility2nd]

Byron White (along with William H. Rehnquist)were dissenters in the Roe v. Wade ruling.

Giving credit where credit is due....

[dirtboy]

Loses total credibility with the inclusion of Sandy.

I will say this for O'Connor - she wrote brilliant dissents in Kelo and Raich. When she was right, she did well.

[Responsibility2nd]

Ranking the Politics of Supreme Court Justices

Four of the five most conservative justices since 1937 are on the bench today

By Justin Ewers

Posted May 12, 2008

Just how conservative is the Supreme Court, anyway? It's a question that has dogged constitutional scholars for years, as they've tried to parse the opaque language and muddled writings of judges moving through the confirmation process. Today's court, headed by John Roberts with seven justices appointed by Republican presidents, is generally considered more conservative than the Supreme Court of the 1950s, for example, when Earl Warren oversaw its unanimous decision in Brown v. Board of Education. But it's hard to compare the current court—and today's justices—with, say, the Burger court of the 1970s, which, with six Republican-appointed justices, decided Roe v. Wade.

Supreme Court in Washington, D.C.

John McCain, for one, doesn't seem to want to take any chances. Last week, he joined a long line of Republican presidential candidates who have pushed for a more conservative court when he promised to make Samuel Alito and John Roberts his "models" for judicial appointments.

But how conservative would a McCain presidency make the court—and how conservative is it already? The answers to these questions may be found in a new paper by Richard Posner, a judge who sits on the Seventh Circuit Court of Appeals, and William Landes, a law professor at the University of Chicago, that is now making its way through the academic community. In "Rational Judicial Behavior: A Statistical Study," Posner and Landes use a database that includes the political background and voting records of the past 70 years of Supreme Court justices—who appointed each justice and how the justices decided every case—to come up with a ranking, from most conservative to least conservative, of the 43 justices who have served on the court since 1937.

Their conclusion: Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt, including Roberts and Alito, are currently sitting on the bench today. Justice Anthony Kennedy, another current Republican appointee, is ranked No. 10. (The table has a full list.) Justices Ruth Bader Ginsburg and Stephen Breyer, the two current justices nominated by Democratic presidents, are among the 15 "least conservative" justices of the past 70 years. Thurgood Marshall, who became the first black Supreme Court justice when he was appointed in 1967, has the most liberal voting record on the list. Clarence Thomas, the second black justice, who was appointed to the court in 1991, is ranked the most conservative.

NUMBER OF CONSERVATIVE VOTES ON U.S. SUPREME COURT, 1937-2006

10 "Most Conservative" Justices
Justice Name	Percentage Conservative Votes
Thomas	.822
Rehnquist	.815
Scalia	.757
Roberts	.753
Alito	.740
Burger	.735
O'Connor	.680
Powell	.677
Whittaker	.673
Kennedy	.647

10 "Least Conservative" Justices
Justice Name	Percentage Conservative Votes
Marshall	.211
Douglas	.213
Murphy	.241
Rutledge	.247
Goldberg	.248
Brennan	.265
Black	.283
Warren	.308
Ginsburg	.312
Cardozo	.333

 

 

 

 

 

 

 

 

 

 

 

 

These findings may not come as a surprise to political scientists, who have devised a range of techniques over the years for calculating judicial nominees' political ideologies, often based on their records before joining the Supreme Court. But Posner and Landes have taken their research a step further, examining the actual voting records of justices while they were sitting on the bench. To do this, they've relied on a database created by Harold Spaeth, a political scientist at Michigan State University, which codes each vote made on the Supreme Court between 1937 and 2006 as either "liberal," "conservative," "mixed," or "both." If a justice votes in favor of a defendant on a criminal procedure case, that vote is considered "liberal." If the justice votes against the plaintiff in a civil rights case, the vote is considered "conservative." http://www.usnews.com/articles/news/national/2008/05/12/ranking-the-politics-of-supreme-court-justices.html

[Dr. Sivana]

There are two problems with this listing. One, why start at 1937, because FDR got enough of his men in? Two, the cases must be given weight:

Brown v. Bd of Ed of Topeka KS was unanimous, so throw that out.

But we also have:

A bunch of New Deal cases that I don't remember

Griswold v. CT ("right to privacy" precednt that paved way for Roe v Wade)

Abington School District v. Schempp (school prayer)

Roe v Wade/Doe v. Bolton

Miller v. California (porno)

Bowers v. Hardwick (sodomy rights)

Lawrence v. TX (sodomy rights overturning Bowers)

Miranda v. Arizona

Kelo v. New London (eminent domain for private use)

Planned Parenthood v. Casey (incorporates 14th amendment into Roe, making it harder to overturn in future)

District of Columbia vs. Heller (gun owners' individ. rights)



These are samples of cases that should be weighted more heavily than others. Unfortunately, cases that might weigh on fine points of anti-trust law or civil procedure might be weighed just as heavily as these major cases.

[Pontiac]

I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.

I can not find any constitutional warrant for the court even reviewing the case.

[bone52]

Scalia didn’t uphold Wickard in Raich, he based his concurrence on the effect of the necessary and proper clause on the commerce clause.

[stop_fascism]

Doesn’t this list imply that justices are deciding cases for political reasons rather than attempting to apply the constitution?

[tacticalogic]

Scalia didn’t uphold Wickard in Raich, he based his concurrence on the effect of the necessary and proper clause on the commerce clause.

So did the majority opinion in Wickard.

[freespirited]

I will say this for O'Connor - she wrote brilliant dissents in Kelo and Raich. When she was right, she did well.

And when she was wrong, she was stark raving mad.

[bone52]

The majority did not uphold the act based on the necessary and proper clause but rather on precedent that had somehow evolved from the necessary and proper clause. Scalia’s analysis is based on the question of what is necessary and proper. While he analizes categories used on prior cases, he does not base his decision on those categories or on the precedent, but rather on his analysis of what necessary and proper means.

There is a world of difference between these approaches.

[tacticalogic]

You see a "world of difference". I see hair-splitting.

The bottom line is that the original intent of the Commernce Clause was not to empower Congress to regulate the growing of wheat, marijuana, or anything else.

For any argument of "Necessary and Proper" to be legitmate it has to be done in pursuit of a legitimate exercise of the power it's being used in support of.

"It is to the following effect. — The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised. beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments."

Joseph Story

Commentaries on the Constitution

[bone52]

The world of difference lies in the fact that Scalia’s argument can be brought into line with Story’s whereas the majority opinion cannot. The huge difference in what Scalia did is that he referenced back to the document itself and sought a way to make sense of the problem in light of the Constitution. I agree completely that his resolution of the problem was wrong, but this is more of a line drawing problem than a problem in logic.

On the other hand the majority relies on the fact that the limits of the commerce clause are defined by precedent. With this view the Court cannot get close to what Justice Story stated and what the original intent was.

Scalia didn’t go to the promised land with his concurrence, but he took a big step in that direction in that he tied the doctrine back to the Constitution instead of leaving it hanging unattached.