Who wants to Burn the Flag? Republicans. That's who.

This little factoid comes from the First Amendment Center. When presented with a First Amendment challenge to flag desecration law, the majority of Supreme Court justices voting to find the law unconstitutional have been Republicans, not Democrats. This is how the figures break down:

Since 1907, the U.S. Supreme Court had decided seven different flag-desecration cases, writing opinions in six of them and sustaining the constitutional challenges in five of those six; and by a 4-4 vote in Radich v. New York (1971), the Court upheld the lower court’s denial of the First Amendment claim. In another case, the Supreme Court summarily affirmed a lower court decision that voided a New York law for vagueness and overbreadth.

Of the 54 votes cast in which the Supreme Court rendered opinions, 28 justices voted to sustain a constitutional rights claim while 26 voted to deny it. When the due-process challenges in [two] cases are excluded, a clear majority of the justices voted to sustain a First Amendment claim: 21 justices voting to sustain such a claim, with 15 voting to deny it. The Supreme Court has never rendered a judgment denying a First Amendment challenge to a flag-desecration law.

Interestingly, no chief justice of the United States has ever voted to sustain a constitutional challenge to a flag-desecration law: Melville Fuller, Earl Warren, Warren Burger and William Rehnquist all voted to deny either First Amendment or due-process claims.

VOTING RECORD OF REPUBLICAN AND DEMOCRATIC NOMINEES

Historically and in more recent times, the majority of justices voting to sustain constitutional challenges to a flag-desecration law were nominated to the Supreme Court by Republican presidents.

The justices voting to deny the due-process challenge in the 1907 Halter case were: John M. Harlan I nominated by Republican President Hayes; William Day, Oliver Wendell Holmes and William Moody by Republican President Theodore Roosevelt; Edward White by Republican President Taft; Joseph McKenna by Republican President McKinley; and David Brewer and Chief Justice Melville Fuller nominated by Democratic President Cleveland. Justice Rufus Peckham, nominated by Cleveland, voted to sustain a due-process challenge to the flag-desecration law.

Likewise, in more modern times the majority of justices voting to sustain a First Amendment challenge to a flag-desecration law were nominated to the Supreme Court by Republican presidents: John M. Harlan II, Potter Stewart and William Brennan were nominated by Eisenhower; Harry Blackmun and Lewis Powell by Nixon; and Antonin Scalia and Anthony Kennedy by Reagan. Those voting to sustain such a claim and nominated by Democratic presidents were William O. Douglas by Franklin D. Roosevelt; Thurgood Marshall by Johnson; and Byron White by Kennedy.

The Republican-nominated justices voting to deny a First Amendment claim were: Earl Warren, nominated by Eisenhower; Warren Burger and Blackmun by Nixon; and William Rehnquist by Nixon as an associate justice and by Reagan as chief justice; John Paul Stevens by Ford; and Sandra Day O’Connor by Reagan. The Democratic-nominated justices voting to deny a First Amendment claim were: Hugo Black by Franklin D. Roosevelt; Byron White by Kennedy; and Abe Fortas by Johnson.

JUSTICES WHO CHANGED THEIR VOTES
Justice White first voted to sustain a due-process challenge to a flag-desecration law in Smith v. Goguen but thereafter voted to deny a First Amendment claim in four other cases. By contrast, Justice Blackmun first voted to deny a due-process claim in Smith v. Goguen but then voted to sustain a First Amendment claim in three other cases. The Supreme Court’s conference notes in Street v. New York indicate that Justice Abe Fortas had originally voted to sustain the First Amendment challenge but thereafter changed his vote, noting that he was losing his “enthusiasm for symbolic speech.” (The Supreme Court in Conference: 1940-1985, Del Dickson editor (Oxford University Press, 2001), p. 349)

FLAG-DESECRATION CASES REMANDED
Following its 1974 decisions, the Supreme Court remanded two cases back to the states to be considered in light of Spence. Chief Justice Burger and Justices Rehnquist, Blackmun and White dissented from that remand order. The free-speech claims in those cases were sustained on remand in Review was subsequently denied [by the Supreme Court in 1975].

Ronald K.L. Collins, Supreme Court Justices’ Voting in Flag-Desecration Cases, included as section 2 in Robert Corn-Revere, Implementing a Flag-Desecration Amendment to the U.S. Constitution An end to the controversy …or a new beginning?, 6 First Reports, no. 1 at 51-53 (July 2005) (footnotes and some citations omitted).