Posted by Jonathan Adler:
Whelan on Miles/Sunstein:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193256410
In today's Los Angeles Times, [1]Ed Whelan critiques the
Miles/Sunstein study examining "judicial activism" on the Supreme
Court. First, Whelan objects to focusing on review of agency
decisions, as opposed to rulings on the constitutionality of state or
federal statutes, because only in the latter case is the result of a
court decision effectively immune from revision through the democratic
process (or even by additional administrative action). Whelan also
thinks there are methodological probems with the Miles/Sunstein
analysis:
They classify rulings as "restrained" or "activist" without regard
to any qualitatitive assessment of whether the ruling is correct.
They implicitly presume that the work product of federal
bureaucrats is politically neutral. . . . If an agency shows a bias
in a particular direction, a neutral judge's decisions overruling
that agency's actions would of course show a pattern in the
opposite direction. Thus, if federal agencies, captured by career
bureaucrats, are prone to err in a liberal direction, the "Partisan
Voting Award" that Miles and Sunstein would confer on Justice
Thomas instead belongs to the agencies.
Miles' and Sunstein's statistics are also skewed by the fact that
they cover the period from 1989 through 2005. Justices Ginsburg and
Breyer were not on the court in the early years of that period,
when the court was reviewing agency decisions from Republican
administrations that account for about a third of the total cases.
The relative partisanship that Miles and Sunstein find in
Ginsburg's and Breyer's votes would surely have been much higher if
Miles and Sunstein had used the same set of cases for all justices.
It seems to me that these critiques significantly undermine the force
of the Miles/Sunstein analysis.
References
1.
http://www.latimes.com/news/opinion/la-oew-whelan24oct24,0,3706916.story?coll=la-opinion-center
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