Today's New York Times has an editorial entitled Activism Is in the Eye of the Ideologist. Here is a taste:
Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to 2005. Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, which is forthcoming in Constitutional Commentary, justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.
The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress. Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer. When state laws were at issue, the liberals were more activist. Add up the two categories, and the conservatives and liberals turned out to be roughly equal. But Justices Thomas and Scalia, who are often held out as models of nonactivism, voted to strike down laws in more of these cases than Justice Breyer and Justice Ruth Bader Ginsburg, the court’s two Clinton appointees.
By the third measure, overturning the court’s own precedents (for which data were available only up to 2000), the conservatives were far more activist. Justice Thomas voted to overturn precedent 23 times and Justice Scalia 19 times, while the court’s four liberals did so in 10 cases or fewer.
Lori Ringhand's paper is available on SSRN: Judicial Activism and the Rehnquist Court. Here's the abstract:
This paper is an empirical analysis of the voting behavior of the individual Justices sitting on Rehnquist Natural Court. The paper, which focuses on the 11-year period between 1994 and 2005 when there were no personnel changes on the Court, examines individual judicial votes to invalidate federal and state laws, and to overturn existing precedent. I conclude that the Court's judicial conservatives were no less likely than their more liberal counterparts to invalidate legislation and overturn precedent, and to do so in ideological predicable ways. NOTE: Please cite to the published versions of this paper: "Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Court" (Constitutional Commentary, 2007; and "The Rehnquist Court: A By the Numbers Retrospective" (University of Pennsylvania Journal of Constitutional Law, 2007).
There is a Legal Theory Lexicon entry on Strict Construction and Judicial Activism. Here is a taste:
[W]hat is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:
- Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.
- Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery. So activism is not meant to be equated with "deciding to strike down a statute or executive action."
- Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.
And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.
