Claims of judicial activism are common from both the right and the left, but they are seldom scrutinized systematically. Prior tests of judicial activism published in law reviews have typically involved analysis of frequency distributions reflecting the number of cases in which Justices voted to invalidate statutes. Such data provide a rough guide but omit any consideration of the “legitimacy” of the statute at issue; indeed, a decision to strike a plainly unconstitutional statute is appropriate rather than activist. To provide a more nuanced measure of activism, we compute a score for each Justice that accounts for the degree to which the votes to strike legislative enactments show a consistent ideological direction, the degree to which the votes ignore the Solicitor General’s position, and the degree of unanimity associated with a decision striking a statutory enactment. This approach provides a somewhat more refined measure of the comparative activism of the recent Justices which demonstrates that liberal Justices in both the Burger and Rehnquist Courts were generally more activist decision makers, although during the last eleven years of the Rehnquist Court several conservative Justices emerged as particularly activist, even when compared to their more liberal brethren.
Volume 91 - No. 6
- Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses
- Note: Affirmative Action: The Constitutional Approach to Ending Sex Disparities on Corporate Boards
- Academic Freedom To Deny the Truth: Beyond the Holocaust
- Free Speech, Higher Education, and the PC Narrative
- A Close-up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty
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