I don’t know about you but I grew up thinking the Supreme Court was made up of the finest legal minds and that as a team, would arrive at the best interpretation of the Constitution.  The thought that ideological leanings, personal attitudes, values, political philosophies, or policy preferences would influence a Justice’s vote didn’t get on my radar until the court got involved in the Florida ballot issue in the Bush v Gore presidential election. 

Alright, I admit I wasn’t paying attention.  I still find 5 to 4 votes to be an indication that the makeup of the Supreme Court could be better if it is always the same Justices that vote the same way.  It is a red alert signal that the Court is flawed when the majority vote keeps being made by the same Justices. The flaw is a Court that doesn’t have a sufficient number of swing voting Justices.  The question is then whether a President and Senate will fix the flaw or compound it.

As established by the Judiciary Act of 1869, the Court normally consists of the Chief Justice of the United States and eight associate justices who are nominated by the president and confirmed by the Senate. The justices base their decisions on their interpretation of both legal doctrine and the precedential application of laws in the past. In most cases, interpreting the law is relatively clear-cut and the justices decide unanimously. However, in more complicated or controversial cases, the Court is often divided.

I am going to say the reasons a Justice is a conservative or progressive voter are the same reasons we are conservative or progressive voters.  A growing body of academic research has confirmed that Justices largely vote in consonance with their perceived values versus scholarly and purely objective interpretations of the constitution.  Don’t we all?

Why are older working class white men especially in rural areas generally conservative?  Why are college educated younger men and women generally progressive?   

  • Older research has shown that strict parenting and a variety of personal insecurities have worked together to turn people against liberalism, diversity, and progressiveness.
  • Newer research that includes brain maps, gene pool analysis, and unconscious attitudes shows the following generalizations:
    • People who prefer a simple vision of good and evil, are cognitively inflexible, are fond of hierarchy, are inordinately afraid of uncertainty, change, and death, and are unaware of their unconscious fears tend to vote Republican.
    • People who are more open to reason and nuance and complex policy tend to vote Democrat.

But let’s forget Democrats and Republicans and instead think about conservatives and progressives.  We are too locked into our Party affiliations even though their core beliefs have historically moved back and forth from conservative to progressive and progressive to conservative.

Long before there were Republicans and Democrats, there were Federalists led by Alexander Hamilton and the Anti-Federalists led by Thomas Jefferson.  In 1787 The Federalists became the first American political.  They were businessmen and merchants who wanted a strong central government to protect industry.

The Federalists were opposed by a group mostly made up of small farmers and planters that wanted a smaller government that wouldn’t interfere with their lives called Anti-Federalists.  The Anti-Federalists would later form a party called the Democratic-Republicans.

In 1828, Andrew Jackson changed the Democratic-Republican Party’s name to the Democrats.  Jackson’s opponents changed the Federalist Party’s name to the Whig Party.

In 1854, the Civil War caused the Democrats to split into the Northern Democrats and the Southern Democrats with the latter being pro-slavery pro-states’ rights members.  Shortly thereafter the Whig party split and the Republican Party was added.  There were essentially four parties—Northern Democrats, Southern Democrats, Whig, and Republican.

After the Civil War the Republicans grew and the Democrats shrunk.  Republicans would favor business interests and taxes on imports. Democrats supported free trade and attracted farmers and immigrants.  Democrats didn’t expand until 1932 when Franklin Roosevelt created economic relief and social security.  Democrats wanted the federal government to actively help those affected by the Depression.  Republicans preferred to not burden business with costs that would help those affected by the Depression.

The Whig Party has long disappeared as has the divided Democratic Party of North and South but it could be said that while the Southern Democrats became just Democrats as did the Northern Democrats, it was in name only until the mass defection of Southern Democrats into the Republican Party after President Johnson signed into law the Civil Rights Act of 1964.

So let’s be clear, the Republican Party of today is pro-business and the Democratic Party is pro-people.  The former has accepted that wealth is accumulating in the top two percent of Americans and the latter has not and while both parties differ from issue to issue, these two core beliefs, pro-business v pro-people, are the foundation for the Republican and Democratic parties we know today.

So, a conservative Justice will tend to vote for business and a progressive Justice will tend to vote for people and to get nominated for Supreme Court Justice, a person seems to have to show a proclivity for social issues supported by those who have affiliated themselves with the Party who resides in the White House.