Visualizing the Ideological History of SCOTUS

langelgjm writes "An interesting exercise in quantifying and visualizing ideological shifts, the website ScotusScores.com tracks changes in the ideological history of the US Supreme Court from 1937 to 2007. Ideological positions are quantified using Martin-Quinn scores, and the chart highlights the often-bumpy transitions (Thurgood Marshall to Clarence Thomas), as well as tendencies within each Justice's career."

Comments

I like visualization

[iluvcapra]

Tufte might grouse though about all the small fonts and the overloading of the vertical axis...

Some things jump right out at me...

• You can see the often-reported phenomenon of justices generally getting more liberal the longer they stay on the court. Conervative justices in particular tend to trend mellower and mellower over time.
• You can see how some justices, like Frankfurter, will trend contra the overall trend of the court. As the court got bluer into the 50s, he got redder.
• How is it that SEVEN of the nine justices who voted in favor of Brown were conservative? There's no way that case would get a unanimous decision today, and conservatives today are much more moderate on social issues than they were in the 50s. This is probably an artifact of the single-dimension grading process than anything else. Alot of Progressive Democrats through WW2 and into the 50s were happy to call themselves racist, and many Republicans still marginally considered themslves enlightened party-of-Lincoln non-racists. There was a big realignment of constiuencies around '68, and this tends to skew the definitional "liberal"/"conservative" meanings.

Re:I like visualization

[Anonymous Coward]

You can see the often-reported phenomenon of justices generally getting more liberal the longer they stay on the court. Conervative justices in particular tend to trend mellower and mellower over time.

Funny, I was thinking that it looked like, for the most part, each justice became more extreme over their sitting, cons more con, progressives more pro...

but I also noticed a few that got more extreme, and then backed down right near the end

I'm just going on my first impression, so you might still be right

Re:I like visualization

[iluvcapra]

I'm not sure what you're trying to prove, but your account of "modern historians" seems to come out of thin air; no historian within the realm of citation has ever claimed Lincoln was a Democrat, or that the labels got "swapped" somehow. The Republican party isn't essentially racist; US political parties don't essentially stand for anything. The racist block of poor southern whites simply just stopped voting Dem and stated voting Republican after the LBJ signed the Voting Rights Act. Southerners had been wary of the Democratic coalition ever since FDR, but he was able to keep them in the tent by buying them off with federal allocations on projects like the TVA and rural electrificatio. The dead hand of this is still with us: the federal government still over-allocates to states that were critical to the dixiecrat electoral block.

The assertion that the southern strategy was a myth is prima facie ridiculous-- there's decades of documentation and scholarship, and most of the originators, including Phillips, Moynihan and Buchanan acknowledge that it exists and played a critical role in forming the post-Voting Rights Act Republican coalition. They stripped the Democratic party of dixiecrats by becoming a party of states' rights, opposing federal writ when it came to affirmative action and busing.

Goldberg's thesis is ahistorical. He tries to draw progressivism and liberalism together with socialism and fascism, but he reduces partisan alignment to philosophy. People vote for socialists without believing in socialism, because the fact is that most parties who declare themselves socialist, or fascist, or liberal simply aren't. Socialists, which were called "Social Democrats" in Germany were hell-bent against National-Socialists in Germany; and both detested the Communists. Progressives in the US had a strong historical relationship to the church, and while areligious progressives in the 30s favored eugenics policies religious ones absolutely did not. And all of this is separate from Sanger, unless you consider birth control tantamount to eugenics, which a lot of people honestly disagree with. The "liberal fascism" argument is born out of the belief that people identify with political parties because they share a common set of beliefs, and that beliefs fall on a continuum. They don't. People don't vote Socialist because they want a Socialist form of government, and the more socialist it gets, the happier they are. People vote Socialist (or Communist, Fascist, Liberal, whatever) because that party promises X, Y, and Z, and the voter decides which party's platform best conicides with their self-interest. Goldberg sees the world through a lens of ideological purity, where parties are evaluated in terms of their consistency to some dogma, as opposed to their ability to deliver on promises to their interest groups, which is actually how people decide what parties to join.

Re:I like visualization

[Anonymous Coward]

That is the theory we are given but I live in the South. The South became Republican as the old Yellow Dog Democrats started dying out. In the main those old guys never forgave the Republicans for Lincoln's "war Crimes", they just finally died out. A few of the less radicalized younger ones eventually flipped parties, mostly due to Reagan not Nixon.

I live in the south, too. In Jesse Helms's constituency (where the schools were segregated by law until the '70s when the feds finally intervened). And your contention is a revisionist fantasy.

The south went Republican, not because of Nixon or Reagan, but in direct response to Johnson's voting rights act. Strom Thurmond saw the civil rights writing on the wall and switched parties in '64. Jesse changed parties during Nixon's first term. Both of them lived for a very long time after making the switch.

Re:I like visualization

[conspirator57]

but note how the average of all justices over all time is 0.05. doesn't that just make you all warm and fuzzy inside about how balanced and stable our judicial politics are? no? you don't mean to say that numbers can lie, do you? or that people can set their numbers up to make the current political spectrum look normal?

SCOTUS should not be driven by ideology.

[reporter]

The Supreme Court of the USA (SCOTUS) should not be driven by ideology. The role of the judge is simply to apply the law impartially. Note that if SCOTUS had applied the law impartially in the early half of the 20th century, SCOTUS would have ruled that laws enforcing segregation are illegal.

Consider the case of the firefighters in New Haven. If the SCOTUS decides this case on the sole basis of the legal statutes (that government shall not hire or promote on the basis of skin color), then the results of the exam will be upheld. All the white firefighters and the 1 Hispanic firefighter should be promoted. If the SCOTUS decides this case on the basis of ideology (i. e., the idea that racial quotas are in the best interest of the USA regardless of the law), then the results of the exam will be rescinded, denying promotion to the firefighters.

These days, the SCOTUS is expected to be ideological. So, political parties, lobbyists, and any other political critter will try his hardest to support a candidate (for justice of SCOTUS) who (1) is willing to make a decision on the basis of ideology and (2) exhibits the ideology that the political critter supports.

Re:SCOTUS should not be driven by ideology.

[crumbz]

Unfortunately it is impossible for any person to apply the law to a particular case impartially. Judges are human beings who take their own prejudices and worldviews into the court, it is not simply left at the door. For example, Assoc. Justice Scalia appears to have chosen "originalism" as his approach to interpreting the U.S. Constitution. This approach elevates the plain meaning of the text, as understood by the framers, as the main criterion for judicial review. Thus, when the constitution is silent on a matter, such as the right to privacy, the existence of this right is left to the legislature and not appropriate for the judiciary to decide. However, Scalia's view is but one interpretation of the constitution, among many competing views. Expecting judges to not decide opinions on the basis of their ideological preferences is idealistic and naive.

Re:SCOTUS should not be driven by ideology.

[nomadic]

I think you're missing the big picture. The Constitution is in some ways an ambiguous document and each of the justices has a different idea of how it should be interpreted. This is an "ideology," but it's one that you need to have if you're a judge, otherwise you can't make any sort of ruling.

Re:SCOTUS should not be driven by ideology.

[iluvcapra]

If the SCOTUS decides this case on the sole basis of the legal statutes (that government shall not hire or promote on the basis of skin color), then the results of the exam will be upheld.

I don't see how you can just state that ad arguendo. If a court finds in favor of New Haven, they are strictly applying federal law. Federal law might be quota-ist, but it's the law. Is the court supposed to write its own laws, or apply it's own reading of the constitution when the Congress has specifically stated that it interprets the Constitution differently? Conservatives only want "impartial rulings" and "strict construction" when it takes destroys people's civil rights and substantive due process, and when a court actually finds impartially for those things, they demand activism. Both sides play this game. Just find good judges and let them do their job-- throw them out if they're corrupt, but otherwise if they can convince 4 of their peers, give them the benefit of the doubt.

Re:SCOTUS should not be driven by ideology.

[jmorris42]

What we get is erratic judging because bad precedent piles on previous bad precedent. But it is just post modern twaddle to assert that impartial judging is impossible. There are some pretty clear guideposts to judge the quality of a court's judging by.

what should good judging look like? Here are some rules of thumb.

1. What we want is the Rule of Law and not the Rule of Men. This means we need a dead Constitution, not a living one. The Constitution has to mean what it meant when it was written. Yes it CAN change, but only by the Amendment process, not judges deciding 'society has changed' or 'evolving standards'.

2. The best measure of whether you have the Rule of Law is whether people know what the rules are in advance. The Founders tried to make that possible by building in lots of sane defaults. Then they added the Bill of Rights to add more clarity with lots of "Congress shall pass no law..." and "shall not be infringed" short of language to clearly define limits to the powers of the Federal Government and topped off with the 9th and 10th Amendments to attempt to put the government in a small clearly defined area. Basically, unless it is clearly specified that something IS something the Federal Government controls the default answer is NO, the government can't do it.

It really shouldn't take much thought to figure out how the Supremes SHOULD rule on most questions. The problem is even the most strict originalists lack both the numbers and the courage to break with precedent and clean out most of the Federal government and thus have to weasel their way to slowly try to push the law in originalist directions without wholesale renunciation of precedent.

3. How would a court full of Vulcans or correctly operating expert systems rule? Working correctly the court would be bored to death because everyone on the lower courts would know how the Supreme Court would rule, and even most of the litigants would know, thus few cases would ever be appealed to them. But because with our current broken system neither side has a frickin clue how any given court, including the SCOTUS, will rule we get endless court action. Heck, by the time your case works its way up the makeup of the SCOTUS will probably change.

Some examples might make these ideas more understandable:

Roe v Wade: The Constitution is silent on abortion thus the 10th reserves it as an issue for the States. The Feds can neither outlaw abortion nationwide or forbid the States from outlawing it. Citizenship is defined as 'born or naturalized' so the pro-life argument that a fetus is a baby may or may not have merit, but that a fetus isn't a Citizen is black letter law as the Constitution is currently written.

McCain/Feingold: What part of Congress shall make no law... is beyond the comprehension of the Honorable Senators? Note that the entirety of the Campaign Finance regulatory regime fails this test along with most of the FEC regulatory machinery.

Re:SCOTUS should not be driven by ideology.

[Cajun Hell]

The Supreme Court of the USA (SCOTUS) should not be driven by ideology. The role of the judge is simply to apply the law impartially.

You will understand "progressives" a lot better, once you realize that the above statement is ideology.

Seriously, there are people who disagree with that statement. What's amazing is that they are the majority. Most people in the US now, think that the law is incomplete and implies things rather than says things.

Look at any SCOTUS case, let's say (here's a good recent one): Do convicted prisoners have the constitutional right to a DNA test to prove their innocence? Almost everyone thinks giving convicts a DNA test (in cases where there is DNA known from the perpetrator to compare with) to re-verify their guilt is, at worst, harmless. Among that group, probably most people think it's a good idea to go ahead and do it.

Progressives look at the situation and say, well, since the DNA testing is a good idea, then it's a constitutional right. DNA testing is the mainstream technology du jour, and therefore, implicitly part of "due process." It's that simple.

Conservatives read the law and say, "I don't see anything in the constitution about DNA. I just can't find DNA mentioned anywhere in that 1780s document, maybe my browser's search function is broken." So they'll say it's not constitutionally protected, but many probably think it's a good idea and might vote for it if they happen to hold office as a state legislator. It's that simple.

They're both spouting ideology, but most conservatives don't realize that "the courts should apply the law impartially" is idealogy because they remember (or think they remember, but that's another topic) when such statements were common sense shared by 99% of the population. When ideology is unanimous and not divisive, we don't think of it as ideology. But you have to pay attention to the growing population that sees the current laws as being so unfair, that those laws must not really be The Law. Once that group becomes big enough, what was once common sense is now just one group's ideology.

"But it's obvious!!" you might think. The law is so clear. Don't forget, though, that the real law is not a document or set of ideals. It's not code, no matter how many times some people say it is. The law is ultimately whatever whoever has the most force of arms wants. It can mean mass murder to make room for the master race, or it can mean double-checking that convicts are really guilty. The law is whatever we want it to be, and I think that when you look at it that way, progressives (whether their ideals are wise or foolish) have reality on their side.

Re:SCOTUS should not be driven by ideology.

[JeanPaulBob]

Roe v Wade: The Constitution is silent on abortion thus the 10th reserves it as an issue for the States. The Feds can neither outlaw abortion nationwide or forbid the States from outlawing it. Citizenship is defined as 'born or naturalized' so the pro-life argument that a fetus is a baby may or may not have merit, but that a fetus isn't a Citizen is black letter law as the Constitution is currently written.

So it's only homicide if the one who dies is a citizen?

somewhat misleading color coding

[target]

One of the things that immediately struck me was that the conservative judges seemed to be more conservative than the liberal judges were liberal, based on the vividness of the color. Aha, I thought, I knew the liberals were more moderate!

But actually I think that's an artifact of the way the coloring was done. Look at Rehnquist as an associate and see the vivid red that his first year shows as, which is 3.98. Now look at Thurgood Marshall, below him, and find a -3.95. Those should look pretty similar in terms of intensity, but the blue looks much closer to white than the red does.

What I think is happening is this. They are color coding not on absolutes like that, but based on the distance between 0 and the most conservative or liberal number. But the most liberal justice is at -6, which the most conservative one is only at -5. So if you get a 4, that's 80% of the way to being the most conservative, but someone who is equivalently liberal at -4 is only 66% of the way to being the most liberal. So they get a color that looks like they are 66 points away from moderate as opposed to 80 points for the conservatives.

Well that's misleading. I think the color gradation changes need to be symmetrical across the graph or it's going to be super confusing. Maybe just call -5 the most liberal you can be and don't worry about shading Douglas more? Or make 6 the most conservative you can be and give up the super deep red color for now.

Re:somewhat misleading color coding

[phlinn]

It's worse than you think. In some cases, negative numbers are still colored red on the court average line.

Re:Interesting, but why so limited?

[iluvcapra]

I think that's sortof a doomed project, because "liberal" and "conservative" are very overloaded and our defintions don't apply to previous eras properly. Most "centrists" in the 1850s would have held a meliorist but tolerant attitude toward slavery, and most fundie Christians, up until the cold war, were populist and redistributionist. Read a William Jennings Bryan or Father Coughlin speech and see how strange their ideology is compared to how we draw the lines today; on the other hand there were people like Robert LaFolette and Neslon Rockefeller, who were rock-ribbed Republicans and conservative in a way, but completely unrecognizable to the current consensus.

A more usefuls scoring might be evaluating how federalist vs. centralist decisions are, or how strongly do the judges define a "taking." Over the arc of US History, many aspects of our discourse have become remarkably small-l liberal, like our attitude toward racism and slavery, while other aspects have trended more small-c conservative, like our attitude toward taxation and civic religion.

Harvard scoring, what do you expect!

[tjstork]

Well that's misleading

The chart's not meant to be honest. The point is that its a bunch of liberals in a liberal university making their political point that the right is more radical than the left when the reverse is arguably true.

Re:Harvard scoring, what do you expect!

[RobVB]

I love the American right-wing conservative way of dealing with people they disagree with: call them a bunch of liberals and walk away feeling good about themselves.

On a side note, here in Flanders, the Liberal party is considered one of the center-right parties.

the Constitution is a Treaty

[tjstork]

The correct interpretation of the Constitution is that it is a treaty among the states to cede some limited power to the federal government. You don't want to go randomly inventing new terms or "living" it out because that changes the terms of the deal that binds the states together. Think of the Constitution as a TOS for the US Federal Gov't. Every time a court changes it, its a TOS change without your consent.

And it should not need to.

The Constitution does not give people rights, as the left is fond of saying, it is that the government only has limited powers and the states and people have all the rest. Thus, even if there was no 2nd amendment, the federal government would STILL be not allowed to regulate firearms. But of course, people just trample the constitution and on both sides of the aisle. The EPA, DOE, and many other left wing laws are clearly unconstitutional, but so too are things like the defense of marriage act..

Re:the Constitution is a Treaty

[Lord Kano]

...are clearly unconstitutional, but so too are things like the defense of marriage act..

On what grounds do you make this claim?

LK

Re:the Constitution is a Treaty

[PylonHead]

So, how does the comparison with mixed-race marriage work? The bans on mixed-race marriage were bans on particular pairings, but they weren't about the definition of marriage. All the example you gave were similar--various marriages & divorces being allowed, but not the definition of marriage changing.

They're both just bans on particular pairings. The relationship remains the same.

You might say that you can't simply abstract away the gender of the participants. The people concerned with race said the same thing.

Re:The Constitution is LAW

[Martin Blank]

The Constitution is not the Quran to be "interpreted" in many different ways.

Almost every amendment has at least one angle for interpretation.
  - When does something printed move from news to libel?
  - What arms do the people have the right to possess?
  - All of the possible nuances of the way in which the state may come into possession of evidence means that "reasonable search" has changed over time.
  - What is a valid public use of private property?
  - If a witness dies before a trial begins, how much, if any, of a deposition made by the deceased should be allowed at trial, since they cannot be confronted by the defendant?
  - The definition of "cruel and unusual punishment" has changed markedly over time for US society. Death penalty? Castration? Long-term solitary confinement?
  - Does a person have an inherent right to get married?
  - If a state passes a law that directly contradicts a federal law, who wins out?

That's the Bill of Rights in order, minus Amendments III and VII, for which I couldn't think of anything off the top of my head. All of those are open to interpretation to some degree. One may have no limits, or one may have complete limits, but most people fall in-between, and that range is why there is interpretation at all.

Re:The Constitution is LAW

[nomadic]

Actually, if you knew your Constitutional history you'd realize that the Constitution was a result of many compromises, and some of the ambiguities were intentionally so in order to get enough support for its ratification.

Just read it. Too many things (like "commerce between the states") are left undefined.No, it doesn't. As an example, let me pick the most non-controversial one (by Slashdot standards) I can think of off the top of my head, the Fourth Amendment. Here's one of the questions they throw at you in law school:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The first clause says people are protected from unreasonable searches and seizures, and the second clause says no warrants without certain requirements. Does this mean that you need a warrant to arrest people? There are two ways to read it; the first is that the two clauses are connected and a warrant is necessary for all arrests, the other is that arrests just need to be reasonable, and that if a police officer chooses to get a warrant, then it must be supported by oath or affirmation, etc. Both are valid readings of the text, with two very different results.

what purpose does the animation serve?

[Anonymous Coward]

What a crappy graphic on page one. Gratuitous animation and no legend. My initial reaction is to expect no meaningful content.

Re:Going to be more changes soon

[JordanL]

I always get a kick out of people who think that SCOTUS justices go through that much effort to time their replacement.

Many, though not all, Justices have little interest in the particular politics of the week, and have more concern for whether or not their replacement will bring a decorum, sensibility and intelligence to the court which befits the seat which they are giving up.

I doubt Ginsburg will conciously wait until the Dems have a supermajority for the purpose of stuffing something down the republicans throats. And I also seriously doubt the dems (or the Repubs) getting a supermajority period for the foreseeable future.

Voters in this country have pretty much spoken: you have one term to make a difference, or they'll find someone else who will.

I don't think that has to do with party lines as much as frustration, and honestly I view THAT as a good thing.