The Study of Judicial Attitudes: the Case of Mr. Justice Douglas

• Published date: 01 March 1971
• DOI: 10.1177/106591297102400102
• Date: 01 March 1971
• Subject Matter: Articles

THE STUDY OF JUDICIAL ATTITUDES:
THE CASE OF MR. JUSTICE DOUGLAS
H. FRANK WAY, JR.
University of California, Riverside
HIS
PAPER is an attempt to determine whether a return to the study of
t
judicial opinions is an appropriate adjunct to the search for judicial atti-
tudes. The study focuses on an arbitrarily selected ten-year period of the
opinions and voting record of Mr. Justice Douglas. The study includes all of his
opinions in six selected categories from October 1953 through the end of the 1962-
63 term of the Supreme Court.&dquo; The principal purpose has been to locate the
extent of written attitudes of a single Supreme Court justice as they were revealed
through content analysis of his opinions in six categories -
monopoly, tax, personal
injury, civil rights, subversion, and criminal cases.
Based on the examination of the 124 opinions written by Justice Douglas, the
following propositions are offered:
I. The written expression of attitudes in opinions is the exception rather than
the rule.
’
II. To the extent that attitudes can be isolated in a significant number of
opinions they constitute a more meaningful explanation of judicial behavior than
can
be found either in voting tabulations or judicial rhetoric.
III. The isolation of attitudes from judicial rhetoric may further reveal the
clustering of such attitudes into a value.
JUDICIAL BELIEFS AND ATTITUDES
’
It is an elementary principle of social psychology that individual behavior can
partly be explained by the motivational influence of beliefs. Individuals, when
faced with certain objects or situations have reactions based on their cognition or
perception of the objects or situations. Since judges are not excluded from the
normal patterns of human behavior, political scientists can and do assume that
beliefs influence judicial behavior. However, behavioral research in the judicial
process has generally avoided examining judicial beliefs and instead has focused
on the organization of beliefs as they appear in attitudes.2 This is probably a result
of two factors. First, beliefs are the common grist of practically all judicial opin-
ions whether majority or dissenting and thus present a formidable problem in
organization and analysis. Secondly, the predictive value of behavior based on
NOTE: I wish to thank the University of California’s Senate Committee on Research for
assistance in this investigation and Charles Adrian, Harlan Hahn and Jane Mercer for
helpful comments.
1
Excluding per curiam and single sentence dissents. While the ten-year period of study
constitutes approximately one-third of Justice Douglas’ tenure, ten years is over two-
thirds of the average period of service for a Supreme Court. The average tenure from
1790 through 1968 was thirteen years.
2
However, see Glendon Schubert, "Jackson’s Judicial Philosophy: An Examination in Value
Analysis," American Political Science Review, 59 (December 1965), 940-63; and David
Danelski, "Values as Variables in Judicial Decision-Making," Vanderbilt Law Review,
1965, pp. 721-40.
12

---

13
beliefs is not as reliable as the predictive value of attitudes.3 Judges on a collegial
court may share judicial beliefs but vote oppositely. Similarly, a judge may not
vote consistently with a previously declared belief.
In short, beliefs provide only a tenuous guide to judicial behavior. It would
be reckless to maintain, however, that it is easy to distinguish between beliefs and
attitudes. Belief or opinion statements are hypotheses about the nature of objects
or situations, and thus focus on the element of probability. On the other hand,
attitude statements are indications of a predisposition to respond to an object or
situation in a f avorable or un f avorable manner. Here the focus is evaluative or
affective rather than cognitive behavior.4
Whether or not particular statements are evaluative or cognitive can only be
determined by recourse to a team of judges or reviewers. In this investigation a
panel of five coders was used. Each panelist, independently, read all of Justice
Douglas’ opinions in the six categories investigated. A theme was included as
evaluative if it received three or more votes. Votes were cast in 190 ballots and
there were 950 individual votes cast. Since the categories were dichotomous, i.e.,
a theme was coded either yes or no as evaluative, there was a theoretical chance of
intercoder agreement with five coders of 686 out of the 950 votes. Eight hundred
and fifteen votes were cast in agreement. This constitutes intercoded agreement of
86 percent. Using a binominal distribution as the basis for the null hypothesis, a
one-sample chi-square test
yields a chi square of 591.828. At df 2, p = < .001.5
MONOPOLIES
6
While federal antitrust cases do not constitute a major part of the Court’s
docket, nonetheless the Court decides some cases in this area every year. Further-
more, the concept of monopolies has constituted a long-standing political issue, one
which has frequently divided the political sector of our nation along liberal and
conservative lines. Based then on the number of opinions decided and on historical
interest, it was determined the antitrust cases would be an appropriate category.
Out of 37 votes cast in antitrust cases, Justice Douglas voted to apply the
particular monopoly statute in 32 cases. He voted with the majority in 29 of the
3
See, e.g., James Prothro and Charles Gregg, "Fundamental Principles of Democracy," Jour-
nal of Politics, 22 (1960), 276-94.
4
See Martin Fishbein, "A Consideration of Beliefs, Attitudes and Their Relationships" in
I. D. Steiner and M. Fishbein, Current Studies in Social Psychology (New York: Holt,
Rinehart and Winston, 1965).
5
Using Bennett’s index of consistency, S = K/K-1 (Po-1/K), where Po is the observed agree-
ment and K
is the number of categories, S here equals .72 (E. M. Bennett, R. Alpert,
and A. C. Goldstein, "Communications Through Limited Response Questioning,"
Public Opinion Quarterly, 18 (Fall 1954), 303-88.
6
This category includes all federal antitrust cases decided by full opinion under the Sherman,
Clayton, Robinson-Patman and Federal Alcohol Administration Acts and includes cases
disposed of on jurisdictional issues as well as those decided on the merits. The category
does not include any contempt enforcement proceedings.

---

14
37 cases. Six of his dissents supported application of the monopoly statutes and
2 opposed the majority’s application. In the 37 cases, he wrote 13 opinions, 8
majority, 4 dissenting and 1 concurring. On most of these occasions, Justice Doug-
las’ opinions reflected a traditional structure. For example, in a majority opinion
in a Robinson-Patman case, he concluded with an opinion-belief statement:
&dquo;... the statute clearly applies to payments or allowances by a seller or by a seller’s
broker to the buyer, whether made directly to the buyer, or indirectly through the
seller.&dquo;
7
However, attitudinal statements appear in only one of his opinions. In a con-
curring opinion in a Robinson-Patman Act price discrimination case, he observed:
&dquo;The Act reflects, however, a purpose to control practices that lead to monopoly
and an impoverishment of our middle class. I would therefore read it in a way
that preserves as much of our traditional free enterprise as possible. Free enter-
prise is not free when monopoly power is used to breed more monopoly.&dquo; And later
in the same case he noted that price-cutting and discounting &dquo;... lead to the same
end -
the aggrandizement of power by the chains and the ploughing under of
the independents.&dquo;
$
Justice Douglas’ votes in antitrust cases are highly consistent. However, two
attitudinal statements would be a rather thin line on which to hang a prediction
of behavior or to offer an explanation for motivation in previous behavior. We can
conclude that Proposition I is supported but neither of the remaining propositions
is supported.
TAXATION 9
Like antitrust law, federal income and estate tax law constitutes an area of
continuing interest to the Court. During the period examined, the Court handed
down 56 full opinions. Justice Douglas’ voting record in the area of federal income
and estate tax cases is unique. Out of the nine justices surveyed, he is the only
member of the Court who failed to support the federal government in a...