My attempt to rank the post 1937 Supreme Court Justices by Libertarianism to Authoritarianism

Miscellaneous General
1

I will admit from the start that this is not the best measure, but I have seen very little on an objective ranking of the Justices. So after seeing this study the other day that attempts to rank the Justices from Conservative to Liberal:

Landes, William M. and Posner, Richard A., Rational Judicial Behavior: A Statistical Study (April 2008). U of Chicago Law & Economics, Olin Working Paper No. 404; The Journal of Legal Analysis, Vol. 1, No. 2, pp. 775-831, 2009. Available at SSRN: http://ssrn.com/abstract=1126403

Link to above cited paper is available at this link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1126403

I used the Economic Scores from Table 3 of the report as is. I took the non adjusted Civil Liberties Scores from Table 3 of the Report and inversed them. Then averaged them to get the below table.

None of the Justices come anywhere close to an overall Libertarian score, no suprise at all. Only 10 of the 43 listed are even on the Libertarian side of center. Cardozo, a Hoover appointee, comes very close to being a pure Authoritarian. Interesting how two judges that are adjacent to each other on the overall list, Murphy and Thomas, while have virtually identical overall scores, have virtually opposite scores on Economics and Civil Liberties.

Sotomayer was not on the Court at the time of the publication of this paper and so is not listed.

Justice Name - Civil Liberty Score - Economic Score - Overall Score

Goldberg 0.791 0.341 0.566
Marshall 0.814 0.305 0.560
Sutherland 0.571 0.522 0.547
Breyer 0.645 0.446 0.546
Souter 0.642 0.433 0.538
Stevens 0.675 0.399 0.537
Douglas 0.813 0.253 0.533
Brennan 0.751 0.312 0.532
Ginsburg 0.692 0.324 0.508
Fortas 0.665 0.341 0.503
Stewart 0.443 0.549 0.496
Whittaker 0.318 0.660 0.489
O’Conner 0.313 0.653 0.483
Rutledge 0.730 0.227 0.479
McReynolds 0.450 0.505 0.478
Blackmun 0.496 0.446 0.471
Roberts, O. 0.454 0.482 0.468
Alito 0.246 0.688 0.467
Roberts 0.233 0.700 0.467
Butler 0.469 0.460 0.465
Warren 0.666 0.257 0.462
Powell 0.306 0.609 0.458
Murphy 0.708 0.203 0.456
Thomas 0.159 0.751 0.455
Jackson 0.406 0.499 0.453
Harlan 0.344 0.560 0.452
Kennedy 0.329 0.556 0.443
Franfurter 0.429 0.453 0.441
Burger 0.229 0.607 0.418
Black 0.646 0.190 0.418
Scalia 0.209 0.625 0.417
Brandeis 0.508 0.323 0.416
Vinson 0.307 0.510 0.409
Burton 0.331 0.482 0.407
Hughes 0.490 0.322 0.406
Stone 0.492 0.316 0.404
White 0.395 0.384 0.390
Byrnes 0.477 0.296 0.387
Rehnquist 0.136 0.630 0.383
Reed 0.383 0.340 0.362
Minton 0.290 0.412 0.351
Clark 0.349 0.332 0.341
Cardozo 0.200 0.211 0.206

Unfortunately, no compiled information of this type seems to exist for Justices prior to Cardozo. It would be interesting whether any scholar has undertaken an overall ranking of Justices in terms of Libertarianism/Authoritarianism and adherence to a literal/originalist interpretation of the Constitution.

2

Giving a little more weight to Economic Score, it seems Alito is the most libertarian?

3

Giving a little more weight to Economic Score, it seems Alito is the most libertarian?

If I was going to weight either score, I would tend to weight the Civil Liberty side. But frankly I don’t see any point of weighting either side.

And Alito is an authoritarian, par exellence, on the Civil Liberties side.

I would have to give the title of closest to libertarian to Justice Sutherland, who was the only Justice to have both his economic and his civil liberty score greater than .500. And while he was the closest, he was still a long way away.

4

Justice Thomas should be the most libertarian post FDR era. Besides his opinions and dissents on some of the War on Terror cases, he’s probably the most libertarian. Opinions and dissents on matters such as private property, guns, drugs, First Amendment, ect. solidify that. Unfortunatly, he has also ruled in favor of giving the President powers not delegated to him.

5

I would have to disagree on Thomas as well. Again, he does have a few high profile pro civil liberties decisions. But overall, only Chief Justice Rehnquist has a lower Civil Liberties score.

Generally, Thomas has ruled for the State against the Indiividual and for the Federal Government against the States, as well as voting to weaken due process protections. A few high profile cases cannot reverse his overall record.

6

I agree, the cases such as Rumsfeld v. Padilla and Hamdi v. Rumsfeld I was really surprised with his arguments.

7

I know that the justices Jefferson appointed weren’t Jeffersonian. I’d say Taney and Fuller (both appointed by Presidents who favored hard money) were the best. Taney was good on civil liberties (Lincoln tried to arrest his ass for supporting the writ of habeas corpus) other than his support for slavery. As for Fuller, he even went against Cleveland’s wishes in an anti-trust case.

One must also keep in mind that those rankings are based upon the presence of the 14th Amendment. That has a huge effect on civil liberties scores.