The Judicial Neutrality Award for blind justice goes to Justice Anthony Kennedy. From Kennedy's voting patterns we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter a fellow GOP appointee is the runner-up.
Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative. Thomas votes in its favor 84% of the time. But when the agency decision is liberal. Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.
Partisan voting can be found among some of the court's more liberal members as well. Justice John Paul Stevens is the runner-up -- with a 40% swing. When the agency decision is conservative he votes in its favor 46% of the time; when it's liberal his validation rate soars to 86%. Stevens' partisan voting rate is nearly the mirror image of Thomas'.
The Judicial Restraint Award for the most humble exercise of judicial power goes to Justice Stephen G. Breyer. Overall he votes to uphold agency decisions more than four-fifths of the time. Notably. Breyer votes to uphold conservative decisions 64% of the time.
The Judicial Activism Award for aggressive use of judicial power goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. This is an impressively low number. Under established principles to which all members of the court subscribe agencies are supposed to get the benefit of the doubt.
According to our tallies the remaining justices were neither distinctively neutral nor distinctively partisan. Former Justice Sandra Day O'Connor was almost as neutral as Kennedy and Souter. Justice Ruth Bader Ginsburg's votes had a liberal tilt but not as much as Stevens' and the late Chief Justice William H. Rehnquist's votes had a conservative tilt but not as much as Thomas' or Scalia's.
For this reason we examined all cases in which members of the court using settled principles evaluated the legality of important decisions by federal agencies such as the Environmental Protection Agency the National Labor Relations Board the Occupational Safety and Health Administration and the Food and Drug Administration.
We used clear and simple tests to code the decisions of these agencies as either "liberal" or "conservative." For example we counted an environmental regulation as "liberal" if it was challenged by industry as too aggressive or as "conservative" if it was challenged by an environmental group as too lax.
We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate we deemed him "neutral," in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt we deemed him "partisan." If a justice regularly voted in favor of agencies we deemed him "restrained," because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies we deemed him "activist," in the literal sense that he frequently used judicial power to strike down decisions of another branch.
Note that the terms "restrained" and "activist" are purely descriptive and so permit an objective test of judicial behavior. It is possible that a justice who is restrained in our sense is wrong and that an activist justice is right.
There are a variety of objections that could and will and are being made to this. The most problematic aspect is their definition of judicial activism which is while laudably workable also not typical of those using the term. That is not to say I have anything better to offer--but it is a reason for--if not skepticism--indifference towards these results.
While it is efficient to divorce notions of "right and wrong" from the definition of "activism," this also (depending on what is meant by the phrase "right or wrong") gets us away from the commonplace usage of "activism." If "right or wrong" means right or wrong from a moral perspective. I have no problem with this move: there are many decisions I think quite activist but nonetheless moral and vice versa and there is a clear distinction between legality and morality. But if "right or wrong" means right or wrong from a
Consider by the authors' definition a justice overturning an agency decision that egregiously violated some explicit constitutional command ("We the FDA hereby do completely abridge the freedom of speech plus you all have to quarter soldiers"). This would be considered "activist," since activism is nothing more than overturning agency acts. But this doesn't comport with any traditional conception of activism neither that held by conservative critics of
and the Court's substantive due process jurisprudence fit this definition and on the conservative side my own (superficial) take is that much 11th Amendment jurisprudence fits as well. Now that definition is admittedly wobblier than Sunstein and Miles's but it would have produced a much more powerful if controversial work.
One may object that all judicial action is activism. That is a decidedly postmodernist interpretation and relies on the Constitution as well as other statutes (and any text. I'd think) being radically indeterminate in some Derridean sense. If there is no objective meaning to the text then my definition of activism makes no sense. I reject that stance.
On another note this desire to avoid controversy is unfortunately widespread in Sunstein's work. So terribly afraid of taking a stand. Sunstein accepts as many criticisms as he can and argues against his position as often as he argues for it. The result is a product that I compare to Chinese food--takes a while to eat but you'll be hungry again fifteen minutes later. Though I've heard his work on behavioral economics is excellent.
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Related article:
http://distributedrepublic.net/archives/2007/10/24/sunstein-and-miles-activist-judges
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