Posted by Jonathan Adler:
Which Justice Is Most "Activist"?
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193244832
University of Chicago law professors Thomas J. Miles and Cass Sunstein
[1]summarize their effort to determine which Supreme Court justice is
most "activist." Rather than look at constitutional cases, or
challenges to statutes, they looked at challenges to federal agency
actions, judging a justice to be "activist" based upon how often he or
she votes to overturn an agency decision. Here is how they describe
their approach:
Everyone looks at the high-profile constitutional cases, but to get
a real sense of how justices approach their jobs, it's best to
analyze the more routine, less-visible cases that are often more
important to people's daily lives.
For this reason, we examined all cases in which members of the
court, using settled principles, evaluated the legality of
important decisions by federal agencies, such as the Environmental
Protection Agency, the National Labor Relations Board, the
Occupational Safety and Health Administration and the Food and Drug
Administration.
We used clear and simple tests to code the decisions of these
agencies as either "liberal" or "conservative." For example, we
counted an environmental regulation as "liberal" if it was
challenged by industry as too aggressive, or as "conservative" if
it was challenged by an environmental group as too lax.
We used equally simple tests to code the decisions of the justices.
If a member of the court voted to uphold conservative and liberal
agency decisions at the same rate, we deemed him "neutral," in the
sense that his voting patterns showed no political tilt. If a
justice showed such a tilt, we deemed him "partisan." If a justice
regularly voted in favor of agencies, we deemed him "restrained,"
because he proved willing to accept the decisions of another branch
of government. If a justice was unusually willing to vote against
agencies, we deemed him "activist," in the literal sense that he
frequently used judicial power to strike down decisions of another
branch.
Using this approach, they conclude the most "activist" member of the
Court is Justice Scalia, and the most "restrained" is Justice Stephen
Breyer. Turning to judicial ideology, they found Justice Thomas had
the most "conservative" voting record (and was the most "partisan" or
ideological), and Justice Stevens was the most "liberal." The least
ideological, according to their methodology, was Justice Kennedy.
Miles and Sunstein note that their analysis says nothing about which
hustices are "right" or "wrong." Rather, they were seeking to develop
a neutral methodology for measuring one sort of judicial "activism" --
in this case rejecting the decisions of federal agencies. That said,
without looking more carefully and their methodology and data set, in
particular how they coded specific cases, it is difficult to evaluate
their claims. (Time permitting, I'd love to dig into this, but the new
baby and pending writing commitments may preclude it.) It is an
interesting analysis nonetheless.
References
1.
http://www.latimes.com/news/opinion/la-oe-sunstein22oct22,0,5512088.story?coll=la-opinion-rightrail
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