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.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]