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
- Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards
- Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court
- Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States
- The Value of the Standard
- The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination
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