Four of the five most conservative justices since 1937 are on the bench today (Political rankings)

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ArticlePhoto (1)Comments (14)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

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[louis-t]

1. No matter who Obama nominates, he is in for a fight.

Repugs will scream bloody murder at even the most conservative candidate. He might as well try for someone who is more liberal.

[GreenPartyVoter]

2. Agreed, but somehow I don't see him going for anyone liberal.

[virgogal]

3. You are never quite sure what you are going to get. We all thought

Earl Warren would be a conservative leaning justice.

Surprise,surprise.

[troubledamerican]

4. Special thanks to Schumer & Feinstein for their extra effort to get Alito confirmed

[happyslug]

5. You mean "Four of the five most conservative justices APPOINTED since 1937 are on the bench today".

I have to say this none of the US Supreme Court Justices compare to the "Four horsemen of the Supreme Court". Those four justices were among the four most conservative justices ever to sit on the court and they power on the court only ended with the retirement of Justice Van Devanter.

For more on the "Four horsemen of the Supreme Court":
http://en.wikipedia.org/wiki/Four_Horsemen_%28Supreme_Court%29

Justice Van Devanter retired in 1937, Justice Sutherland in 1938, Justice Butler died in office in 1939 but the last of the Horsemen, McReynolds sat on the Court till 1941 when he retired. These are all to the right even of Scalia and Thomas, thus your caption should include the word "Appointed" for all but Justice Devanter was still sitting on the court in 1938 when Justice Black replaced Justice Devanter. Thus were sitting on the court AFTER 1937, even through appointed BEFORE 1937.

The replacement of the Four Horsemen by Justice Black, Justice Murphy, Justice Byrnes and Justice Reed lead the Supreme Court to accept the New Deal. During the same four year period, 1937-1941, Justice Cardozo was replaced by Justice Frankfurter, Justice Brandeis was replaced by Justice Douglas, Justice Stone was replaced by Justice Jackson when Justice Stone was promoted to Chief Justice on the Retirement of Chief Justice Hughes. Thus within four years you went from a Supreme Court with a minimal of Democratic appointees to one with only one GOP appointee, Justice Roberts (Through Justice Stone had been appointed as a Justice by Calvin Coolidge, he had been promoted to Chief Justice by FDR). Thus by 1941 FDR had appointed seven of the Justices and promoted an eighth to be Chief Justice. Thus by 1941 only Justice Roberts was the sole Supreme Court Justice NOT appointed or promoted by FDR, while in 1937 FDR had appointed NO ONE TO THE COURT even through elected in 1932.

[happyslug]

6. It was a radical change between 1937 and 1941

Justice Van Devanter retired in 1937, Justice Sutherland in 1938, Justice Butler died in office in 1939 but the last of the Horsemen, McReynolds sat on the Court till 1941 when he retired. These are all to the right even of Scalia and Thomas, thus your caption should include the word "Appointed" for all but Justice Devanter was still sitting on the court in 1938 when Justice Black replaced Justice Devanter. Thus at least three of the "Horsemen" were sitting on the court AFTER 1937, even through appointed BEFORE 1937.

The replacement of the Four Horsemen by Justice Black, Justice Murphy, Justice Byrnes and Justice Reed lead the Supreme Court to accept the New Deal. During the same four year period, 1937-1941, Justice Cardozo was replaced by Justice Frankfurter, Justice Brandeis was replaced by Justice Douglas, Justice Stone was replaced by Justice Jackson when Justice Stone was promoted to Chief Justice on the Retirement of Chief Justice Hughes. Thus within four years you went from a Supreme Court with a minimal of Democratic appointees to one with only one GOP appointee, Justice Roberts (Through Justice Stone had been appointed as a Justice by Calvin Coolidge, he had been promoted to Chief Justice by FDR).

Thus by 1941 FDR had appointed seven of the Justices and promoted an eighth to be Chief Justice. Thus by 1941 only Justice Roberts was the sole Supreme Court Justice NOT appointed or promoted by FDR, while in 1937 FDR had appointed NO ONE TO THE COURT even through elected in 1932. If FDR had lived till September 1945 he could have named the successor to Justice Roberts and have the honor of naming ALL Supreme Court Justice something only Washington has even had the honor of doing.