Judicial activism: an empirical examination of voting behavior on the Rehnquist natural court.

• Author: Ringhand, Lori A.
• Position: Symposium: The Rehnquist Court in Empirical and Statistical Retrospective

This paper attempts to quantify one of the most deeply contested terms in constitutional law: "judicial activism". (1) Most discussions of "judicial activism" define activism either in reference to a particular political ideology (such as complaints about "liberal activist judges") or a particular method of Constitutional interpretation (such as assertions that a decision was "activist" because it was not based on the original meaning of the Constitution). (2) This paper sidesteps those debates, focusing instead on an empirical examination of how recent U.S. Supreme Court justices have in fact exercised their judicial power. I do this by examining the voting records of the individual justices in three areas: how often did the justices vote to invalidate federal legislation, how often did they do so in relation to state legislation, and how often did they vote to overturn existing judicial precedents? (3) I also examine the issue areas in which each of the justices cast these votes and the ideological direction of the votes.

My approach consequently does not address the substantive questions of when or how judges should use their power of judicial review to invalidate legislation or overturn precedent. Instead, I simply examine how the justices are in fact using those powers. (4) My goal in using this purely quantifiable approach is to move past the rhetorical debate about "activist judges" replacing legislative choices with their "personal preferences" and toward a more grounded examination of how all justices--liberal and conservative--use their judicial power. In taking this approach, I do not attempt to supplant the important substantive debate about constitutional interpretation and the role of the judiciary in our governing system, but rather to enrich it by providing quantifiable information about how recent justices actually used their judicial power.

This examination of actual judicial behavior reveals several interesting things, each relevant to the "judicial activism" debate. First, conservative justices as well as their more liberal counterparts actively "replace" legislative choices with their own preferred outcomes, and they do so at a roughly equal pace, although, as shown below, they do so in different types of cases. Second, both liberal and conservative justices use their judicial power in ideologically predictable ways: with few exceptions, liberal justices use their power to invalidate legislation and overturn precedents to generate liberal outcomes and conservative justices use that power to generate conservative outcomes. (5) Finally, the most conservative justices on the Rehnquist Court used their power in some surprising ways, ways not easily attributable to the originalist methods of interpretation they otherwise advocate. That Court's most conservative justices, for example, did not exclusively or even primarily use their power to invalidate federal statutes in federalism cases. While such cases were an important part of those justices jurisprudence, most of the federal invalidation votes cast by the Court's conservative justices were actually cast in First Amendment cases--an area with a much more uncertain originalist pedigree.

This look at the actual voting behavior of recent Supreme Court justices thus provides specific, empirical data supporting what is evident to many Court-watchers: the interesting difference between the Court's "liberal" and "conservative" justices is not whether they used their power of judicial review "actively" but how they used that power. Liberal justices used the power of judicial review to protect certain First Amendment rights, certain civil rights, and the rights of criminal defendants; conservative justices used the same power to protect other First Amendment rights, other civil rights, and states' rights. (6) The pertinent question, therefore, is not whether we want our justices to be "activist", but how and in which areas we want them to actively use their power. Do we want justices who protect civil and privacy rights or commercial speech and states' rights? Who defer to Congress or to state legislatures? Attaching the epithet of "activism" to some of these uses of judicial power but not others adds heat but little light to this important debate, and my hope is that the information presented here will help shift the public debate to more productive ground.

EXPLANATION OF THE DATASET

This project relies on the U.S. Supreme Court Databases originally developed by political scientist Harold Spaeth, refined by Sara Benesh, and distributed by Kirk Randazzo. (7) I use two of the Spaeth Databases here: the Supreme Court Database, which includes information about what the Supreme Court as a court did; and the Supreme Court Justice-Centered Database, which includes information about what each individual Supreme Court justice did. The Justice-Centered Database, which is the data base I primarily rely on, only extends through the Court's 2000 terms. To provide a complete picture of the voting records of the justices who sat on the last Rehnquist Natural Court, (8) I therefore supplemented the Justice-Centered Database by coding the pertinent information for the 2001-2004 terms myself. I did this by first using the more up-to-date Supreme Court Database, which extends through and includes the Court's 2004 term, to identify Supreme Court cases in which constitutional issues were addressed. I then reviewed those cases and, following Spaeth's coding rules, identified and included the relevant variables in my dataset. (9)

The Justice-Centered Database also has been altered to include only those cases decided by the last justices to sit on the Rehnquist Natural Court: Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, Thomas, Souter, Ginsburg and Breyer. Because these same nine justices sat together throughout this period, this time flame provides a wealth of data while avoiding the difficulties associated with comparing decisions rendered by different justices in different cases. To ensure the validity of this direct justice-to-justice comparison, I have deleted from the dataset any cases from this period in which less than all nine of the justices participated. I also have removed informally issued opinions, including memorandum opinions and decrees, opting instead to include only formally decided cases in which the Court heard oral argument and issued a written opinion. Plurality and per curium opinions meeting these criteria are included. (10)

1. FEDERAL LAWS AND DECLARATIONS OF UNCONSTITUTIONALITY

   1. USE OF JUDICIAL REVIEW TO INVALIDATE FEDERAL LAW

      The conservative justices on the Rehnquist Court, individually and as a group, cast notably more votes to declare federal statutes unconstitutional than did their more liberal counterparts." Within the cases examined, Justice Thomas cast the most votes, 34, to declare a federal law unconstitutional. Justices Kennedy and Scalia were next, with 31 and 30 federal invalidation votes, respectively. The remaining conservative justices, Justices Rehnquist and O'Connor, followed with 25 and 24 such votes. The liberal justices, on the other hand, cast the fewest such votes: Justice Souter cast only 21 votes to overturn federal legislation, Justices Ginsburg and Stevens cast 17 such votes, and Justice Breyer cast only 14: (12)

      Table 1 Justice Votes to Declare a Federal Statute Unconstitutional Thomas 34 Kennedy 31 Scalia 30 Rehnquist 25 O'Connor 24 Souter 21 Ginsbur 17 Stevens 17 Breyer 14 Obviously, the conservative justices on the Rehnquist Court were much more likely than their liberal counterparts to vote to declare federal statutes unconstitutional. Each of the conservative justices voted to invalidate more federal laws on constitutional grounds than did each of the liberal justices, with Justices Thomas, Kennedy and Scalia voting to do so in more than twice as many cases as did Justice Breyer. Plainly, judicial conservativism, at least as actually practiced by the justices of the Rehnquist Court, cannot be associated with the institutionally conservative value of judicial deference: the most conservative justices on the Rehnquist Court also were the justices most likely to use their power of judicial review to invalidate federal legislation. (13)

   2. ISSUE AREAS IN WHICH THE JUSTICES VOTED TO INVALIDATE FEDERAL LAWS

      The conservative and the liberal justices also differed in the issue areas in which they cast their votes to invalidate federal legislation. The Supreme Court Databases assign each justice's vote a discrete issue area (coded as "values"). These issue areas are as follows: criminal procedure, civil rights, First Amendment, due process, federalism and federal taxation. The criminal procedure area includes cases involving the constitutional rights of criminal defendants. (14) The civil rights area includes cases raising issues of voting rights; Fourteenth Amendment rights; affirmative action; discrimination claims based on race, sex, sexuality and disability; assertions of welfare rights; and cases raising issues involving immigration and naturalization. (15) The First Amendment area includes cases raising freedom of speech or religion claims, including campaign finance cases, commercial speech cases, and pornography and obscenity cases. (16) The due process area includes procedural due process and Takings Clause cases. (17) The federalism area includes cases raising constitutional questions about the relative scope of national and state power, including Tenth and Eleventh Amendment cases, Commerce Clause cases, and--as recoded for this paper--cases arising under section 5 of the Fourteenth Amendment. (18) The federalism category does not include cases decided on the basis of federal statutory preemption. (19) The final issue area, federal taxation, includes only one case that appears in the analysis presented here: United States v. United States Shoe Corporation, in which Justice...