Proceedings of the National Conferences
On Undergraduate Research (NCUR) 2012
Weber State University, Ogden, Utah
March 29 – 30, 2012
An Analysis of U.S. Supreme Court Justice Voting Patterns on the Free
Exercise Clause of Religion
Carlin M. Bunting
Political Science Department
University of Wisconsin-River Falls
River Falls, Wisconsin
Faculty Advisor: Dr. Neil Kraus
Abstract
The original writers of the Constitution did not intend for the Supreme Court to have much power in our
government. The Supreme Court now reigns with the power to interpret the Constitution. Much controversy
develops from the interpretation of civil liberties in the 1st Amendment and more so, on the Free Exercise of
Religion clause. With personal subjects like religion, one must take into account the potential influences and bias in
Supreme Court justices’ decisions. Scholars agree public opinion, party identification, presidential appointment,
experience, and personal ideologies influence justice voting and decisions. My research focuses on presidential
appointments, ideology, cohesive voting blocs on individual justice voting behavior. The importance of the
credibility in the research is revealed when citizens elect a president for office, and members to the House of
Representatives and the Senate. When citizens vote, they are indirectly voting for Supreme Court justices.
Therefore, citizens elect people who are in control of interpreting if individual religious practices are lawful. On the
whole, the research broadly stresses the significance of being informed voters because it is a way to continue
keeping religion in the hands of the citizens of the United States.
Keywords: U.S. Supreme Court, Voting, Religion
1. Literature Review
True to its essence, religion in politics is often difficult to study because of its abstract nature. The justices of the
Supreme Court are also generally abstract subjects to empirically study because of the many influences on their
appointment, party affiliation, and voting behavior. Studies of the Supreme Court suggest justices do not necessarily
pay keen attention to public opinion, but they have been chosen by a president who presumably shares the public’s
views (Norpoth, 1994). Many scholars then infer presidential appointment influence Supreme Court justices because
the president and appointed justice share similar ideologies, policies, and party affiliations. Presumably, the party
affiliation of the president can influence how a justice votes. Due to the nature of researching specifically defined
topics, the literature on correlations between presidential party affiliation, Supreme Court justice voting patterns,
and the free exercise clause of religion is limited. However, there are consistent patterns of statistical data
quantifying parts of my research and consensual agreement by scholars confirming outside influences do affect
Supreme Court justices voting.
Fundamental research cited in much of the literature on influencing Supreme Court is Robert Dahl’s “DecisionMaking in a Democracy: The Supreme Court as a National Policy-Maker.” Dahl analyzes influences on Supreme
Court voting and the importance of how interpretations of vague national law influence governmental policy. In
Jeffery Segal and Richard Timpone’s, “Buyer Beware?,” the authors analyze Robert Dahl’s hypothesis stating
justices support the policy preferences of the president who appointed them. In their study, an important distinction
between concordance and responsiveness is emphasized. Segal and Timpone define concordance as, “the relative
agreement between judicial behavior and presidential policy preference” (1994), and explained most scholars use the
word “responsiveness”, implying a direct relationship. However, justices’ decisions are unpredictable, so
concordance is a more appropriate term.
Another important part of Segal and Timpone’s study is the survey conducted on liberal and conservative
presidents; a study paralleled by Justin Moeller and Brian Levey’s work, “Presidents and Their Justices: Voting
cohesion of Presidential Blocs.” Both studies suggest presidents who appoint justices sharing their ideological
motives will influence a justice more than ties to a political party. Surveys were conducted to rank presidents as
liberal or conservative and data was used in a regression analysis to confirm their hypotheses. Further, Stuart Nagel
of the University of Arizona makes a viable argument through his study on political party affiliation and Supreme
Court justice voting. He posits the hypothesis holds true for the first four years a justice is on the court, but the
relationship declines over time. From these analyses we can infer the president does influence justice voting
behavior.
Most scholars agree presidential appointment directly influences Supreme Court justice voting, but some scholars
believe other variables like the Senate and symbolic appointments are often ignored. Their argument is important
because both variables could act as antecedents affecting the outcomes of my research. A symbolic appointment is
when the president picks a candidate for court not based on shared ideologies, but rather because of demographics,
oppositional political party ties, or appeasement of a specific group. Two main works suggest this influence, Brian
Levey and Justin Moeller, with a focus on the Senate, and Thomas Marshall’s “Symbolic Versus Policy
Representation on the U.S. Supreme Court,” examining symbolic appointments. Marshall’s research makes the case
presidents are influenced when nominating justices to gain congressional backing, explaining why symbolic
appointments must be taken into consideration when examining the results of political party appointment and
Supreme Court justice voting. Marshall makes several arguments concluding, “Symbolic appointees have not
typically been faithful delegates” (1993). His research suggests this type of nomination can skew research results
and cause disparity among the appointed.
The concept is also consistent with Levey’s views of the Senate. He suggests studies implying direct presidential
influence on Supreme Court justice voting often ignore the influence of the Senate on the president. Levey also
goes on to explain, “During periods of divided government, a hostile Senate may require a president to nominate
individuals who are less similar ideologically and less likely to operate in a cohesive manner… in favor of the
president” (2007). Here, Levey solidifies the argument that prior influence affects justice selection and implies the
difference in ideologies can influence a justice to vote against presidential ideology.
Another part of Dahl’s analysis is the positive correlation between presidential appointments and the voting of the
court as a cohesive alliance. Two works agree with Dahl’s theory that maximal influence comes from the presidents’
opportunity to appoint more than one justice in cohesive voting blocs: Stefanie Lindquist and Doug Yalof’s work
and further examination of Levey’s research mentioned earlier. Both studies used bloc voting as a unit of analysis to
confirm presidential influence and examine voting on civil liberties.
Levey’s hypothesis focuses on the president’s appointments having similar ideologies and how the appointed court
would vote accordingly. He used blocs of two or more justices, but his results were inconclusive. Lindquist fared
better. Her study involved case studies of blocs of four and five justices appointed by Presidents Roosevelt, Truman,
Eisenhower, Nixon, and Reagan. Most relevant to my research is Lindquist’s analysis on Ronald Regan and the civil
liberty of religion. Reagan selected nominees based on civil liberty ideology. An analysis of Reagan’s bloc of
justices shows consistent and cohesive voting with Reagan’s ideologies, confirming Lindquist’s hypothesis. It’s
questionable whether specific issues, namely freedom of religion, speech, or the presses were influenced.
In my research there are only fourteen major Supreme Court cases on the free exercise clause of religion. In all
fourteen cases the two sides were an individual versus a form of government or legislation. Scholars conclude
Republicans are more likely to side with the government and law in civil liberties cases and side with individuals in
cases involving the economy, and more so if complainants are considered conservative. Since there is little research
on my topic, I used several government documents to examine correlations and facts within these hypotheses. Of all
of the U.S. Supreme Court cases directly involving the free exercise clause of religion, nine out of twelve cases with
a Republican-appointed majority bench sided with the government, and after 1978, seven out of eight cases. Both of
the cases with a Democratic- appointed majority bench, sided with the individual. The evidence proposes a
correlation between the presidential party and Supreme Court voting on the free exercise clause. However, scholars
like John A. Fliter argue it is short lived. Fliter presents a case study of current Justice David Souter who established
himself as a moderate conservative, who more recently has been voting more liberal. The article explains Souter’s
ideologies and his effect on the Supreme Court. Fliter concludes with Souter’s commentary about his lack of
research and knowledge on religion clause case precedent before his appointment to explain Souter’s recent change
in ideologies. This reinforces the notion of outside influences such as bench experience, justice knowledge base, and
personal experience as unpredictable voting behavior.
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While examining literature on my research topic, I determined three major inconsistencies that will need to be
revised. First, identification as a conservative or liberal was more likely to influence justice voting patterns than the
political party affiliation. Second, it is important to identify variables that can affect results and distinguish between
concordance and responsiveness. There are variables like the Senate and symbolic appointment, the unpredictability
of changes in justice’s ideologies, and personal experiences affecting justice voting at varying levels of influence.
Lastly, justices elected cohesively are more likely to vote together and in accordance with the views of the president
that appointed them. Therefore, the bench as a whole may be influenced more by presidential appointment than an
individual justice. Conclusively, although the presidency and political power do in fact affect Supreme Court voting
it is important not to ignore other variables that affect how a justice votes. Dahl concludes, “…if justices were
appointed primarily for their “judicial” qualities without regard to their basic attitudes on the fundamental questions
on public policy, the Court could not play an influential role” (1957). Here, we must also realize the court, in its best
interest, ensures everyone abides by the best interpretation of the law.
2. Hypothesis, Variables, and Definitions of Concepts
The research question is: Why do the ideologies of the president that appoints a Supreme Court justice affect how
they vote on the Free Exercise of Religion clause. My hypothesis is a justice appointed by a conservative president
will vote in concordance with the government and a justice appointed by a liberal president will vote in concordance
with the individual. My independent variable is the ideology of the president that appoints the bloc of justices and
my dependent variable is Supreme Court Justices’ voting patterns.
In my literature review, there was a distinction made between concordance and responsiveness, where
concordance acknowledged a relative agreement between presidential policy preference and justice voting, rather
than implying a direct relationship. So, concordant voting is when a justice votes parallel to the policies of the
president that appointed them. In my research, I define liberal as voting consistently with the individual and
conservative as voting consistently with the government. The ideology of a president is operationally defined as
their opinion of being completely liberal or completely conservative only. The focus on religion can be operationally
defined as the civil liberty tied to the Free Exercise Clause defined in the Constitution and interpreted by the U.S.
Supreme Court.
3. Methodology
Due to the narrow topic of ideologies, the Supreme Court, and the Free Exercise of Religion clause, there is minimal
research and even less research design layouts to test the specific hypothesis. There were two designs explained
previously in the literature review, one dealing with advanced statistics and regression analysis, the other with case
studies and cohesive bloc voting. Since my hypothesis focuses on how individual justices are influenced on a
specific religion clause, rather than how blocs of justices vote on the broad subject of civil liberties, a modified, nonexperimental research design is necessary. The types of designs that can be used are content/document analysis and
case studies because the information necessary for the research proposal is found in government documents, law,
and court cases that have been studied systematically, and used advanced statistics or regression analysis. (Unsure
what you are saying in last 2 sentences. Need to revise and maybe make 2 sentences out of it with better
explanation.)
Lists will be used to select a sample of court cases, presidents, and justices to study and analyze voting patterns.
There are a total of twenty-five cases ranging between 1860 and 2010 from which the sample will be selected. Next,
the two to three most liberal and conservative presidents who appointed at least one justice to the court are selected.
There is consensus that the top five most prominent conservative presidents with respect to Supreme Court
nominations and my timeline are: Grover Cleveland, Calvin Coolidge, Richard Nixon, Ronald Reagan, and George
W. Bush. The top five most liberal presidents in the same time frame are: Franklin D. Roosevelt, Jimmy Carter,
John F. Kennedy, Lyndon B. Johnson, and Bill Clinton. When choosing from the five, the number of justices
appointed on both sides, in total, should be equal and all have voted on at least one free exercise of religion case.
The presidents selected for the research proposal are the conservatives Ronald Reagan and Richard Nixon,
together appointing seven justices, and liberals selected are Lyndon B. Johnson and Franklin D. Roosevelt also
appointing seven. Nixon chose: Warren Burger, Harry Blackmun, William Rehnquist, and Lewis Powell. Regan
chose: Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. He also elevated William Rehnquist to chief
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justice. FDR chose: James McRenolds, Frank Murphy, William Douglas, Felix Frankfurter, Stanley Reed and Hugo
Black. Lyndon Johnson chose Thurgood Marshall. These appointments cut the timeframe to 1940-1992 to the
examination twelve major court cases: Cantwell vs. CT (1940); Braunfeld vs. Brown (1961); Sherbert vs. Verner
(1963); Yoder vs. WI (1972); McDaniel vs. Paty (1978); Heffron vs. Society of Krishna Consciousness (1980);
Thomas vs. Review Board of the Indiana Employment Security Division (1980); The United States vs. Lee (1981);
Goldman vs. Weinberger (1986); Lyng vs. Northwest Indian CPA (1987); Smith vs. Employment Division (1990);
Church of Lukumi Babalu Aye vs. Hialeah (1992).
It is important to then follow the rulings of individual Supreme Court justices on each case to examine if the
voting patterns are consistent with the ideology of the president that appointed them. In order to determine a ruling,
a justice voting in favor of the government will be considered conservative and a justice voting in favor of the
individual will be considered liberal. A table here would be helpful in collecting and interpreting data, first on a case
by case basis. The (c/l) denotes where the justice was appointed by a liberal (l) or conservative (c) president. A
example of the table would look like Figure 1:
CASE NAME
Justice Name (c/l)
Consistent with Ideology
X
Inconsistent with Ideology
X
Figure 1. Example Of Table Denotes Where The Justice Was Appointed
By A Liberal (L) Or Conservative (C) President.
A running total table should be kept in order to calculate the consistency of a justice voting pattern with the ideology
of the president that appointed them. The proportion would be the number of times a justice was consistent or
inconsistent with the ideology to the total number of cases an individual justice voted on. A general example of the
table would look like Figure 2
ALL CASES
Justice Name (c/l)
Consistent with Ideology
#/total # of cases voted on
Inconsistent with Ideology
#/total # of cases voted on
Figure 2. Example Of The Number Of Times A Justice Was Consistent Or Inconsistent
With The Ideology Of The Total Number Of Cases An Individual Justice Voted On.
The table should be converted into percentages to make the data comprehensible. A hypothetical example would be
set up as shown in Figure 3:
TOTAL CASES
Warren Burger (c)
Thurgood Marshal (l)
Consistent with Ideology
75%
80%
Inconsistent with Ideology
25%
20%
Figure 3. Example Of Converted Percentages To Make The Data Comprehensible.
4. Results
The combined results of the individual cases and voting of individual justices are shown in Figure 4.
ALL CASES
Warren Burger (c)
Harry Blackmun (c)
William Rehnquist (c)
Lewis Powell (c)
Sandra Day O’Connor (c)
Antonin Scalia (c)
Anthony Kennedy (c)
James McReynolds (l)
Frank Murphy (l)
William Douglas (l)
Consistent with Ideology
3/6
50%
1/8
12.5%
6/8
75%
3/5
60%
3/5
60%
2/3
66%
1/2
50%
1/1
100%
1/1
100%
4/4
100%
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Inconsistent with Ideology
3/6
50%
7/8
87.5%
2/8
25%
2/5
40%
2/5
40%
1/3
33%
1/2
50%
0/1
0%
0/1
0%
0/4
0%
Felix Frankfurter (l)
Stanley Reed (l)
Hugo Black (l)
Thurgood Marshall (l)
2/2
1/1
1/1
7/8
100%
100%
100%
87.5%
0/2
0/1
0/1
1/8
0%
0%
0%
12.5%
Figure 4. Combined Results Of The Individual Cases And Voting Of Individual Justices
Before consolidating all the data into one result, it is important to acknowledge the differences in the number of
cases and some disparity in the data between justices appointed by liberal and conservative presidents. There have
been more conservative presidents in our history than liberal ones. So, the disparity in the number of cases is
explained by the fact that the majority of our liberal presidents were in office in our earlier history or didn’t appoint
any justices to the court. The major differences in the voting consistency is the liberals that were chosen may have
only voted on one case and most of the conservatives that were chosen for the study voted on two or more cases.
The following Figures (5,6) are a consolidation of afore mentioned data:
ALL CASES
Justices appointed by Cons.
Justices appointed by Liberals
Consistent with Ideology
19/37
51.4%
17/18
94%
Inconsistent with Ideology
18/37
48.6%
1/18
6%
Figure 5. Consolidation Data – Appointed Justices By Party
ALL CASES
All Justices
Consistent with Ideology
36/55
66.5%
Inconsistent with Ideology
19/55
34.5%
Figure 6. Consolidation Data – All Justices
5. Analysis and Discussion of Final Results
After acknowledging possible disparity, the tables presented provide a solid backing for accepting my hypothesis
and creating a foundation and reason for further study on the topic of Supreme Court justice voting patterns. My
results make it evident, justices appointed by liberal presidents and justices appointed by conservative presidents
tend to vote more often with the specific ideology of the president that appointed them than not. Although, it seems
liberal appointed justices vote more often that way than conservative appointed justices, the numbers show strength
to my argument in both cases. In most social science studies, a result as large as 65.5% consistency is considered an
incredible success. This allows me to conclude my hypothesis to be true: presidents appointing justices with similar
ideology and policy preferences leads to concordant voting. Any skewed results would come from antecedent
variables, changes in justice ideologies over time, and unpredictable voting behavior. The supplementary study of all
justices, on all cases regarding the free exercise clause would provide further confirmation of my hypothesis.
6. Bibliography
1. Dahl, R. (1957). Decision-Making in a Democracy: The Supreme Court as a National Policy Maker. Journal of
Public Law 6: 279-95.
2. Fliter, J. A. (1998). Keeping the faith: Justice David Souter and the first amendment religion clauses. Journal of
Church & State, 40(2), 387. Retrieved from EBSCOhost.
3. Levey, B. P. and Moeller, J., (2007). Presidents and Their Justices: Voting Cohesion of Presidential Blocs.
2011-03-12 . http://www.allacademic.com/meta/p209494_index.html
4. Lindquist, S. A., & Yalof, D. A. (2000). The Impact of Presidential Appointments to the U.S.Supreme Court:
Cohesive and Divisive Voting. Political Research Quarterly, 53(4), 795. Retrieved from EBSCOhost.
5. Marshall, T. R. (1993). Symbolic versus policy representation on the U.S. Supreme Court. Journal of Politics,
55(1), 140. Retrieved from EBSCOhost.
6. Nagel, S. S. (1961). Political Party Affiliation and Judges' Decision. The America Political Science Review,
55(4), 843-850.
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7. Norpoth, H., & Segal, J. (1994). Popular influence of Supreme Court decisions. American Political Science
Review, 88(3), 711. Retrieved from EBSCOhost.
8. Segal, J., Timpone, R., & Howard, R. (2000). Buyer Beware? Presidential Success through Supreme Court
Appointments. Political Research Quarterly 53(3 ), 557-73. Doi: 10.1177/106591290005300306.
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