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Abstract:
This paper is an empirical examination of the voting behavior of the U.S. Supreme Court Justices who sat on the last Rehnquist Natural Court (the period from 1994 to 2005 when there were no personnel changes on the Court). The purpose of the paper is to examine how each of these justices used their power of judicial review during this period and, in doing so, to compare the relative 'activism' of those justices. For purposes of this analysis, I intentionally avoid definitions of judicial activism that rest on contested theories of constitutional interpretation. I instead measure judicial activism in three purely quantifiable ways: how many times each justice voted to invalidate federal laws, how many times each justice voted to invalidate state laws, and how many times each justice voted to overturn existing precedent. I also examine the issue areas in which the justices cast these votes, the ideological direction of the votes, and the vote margins in the cases in which they were cast. This comparison confirms what many scholars of the Supreme Court have observed: while all of the justices used their power of judicial review proactively and in ideological predictable ways, the judicial 'conservatives' sitting on the Rehnquist Natural Court were much more likely than their 'liberal' counterparts to invalidate federal legislation and overturn precedent, while the 'liberals' were more likely to invalidate state laws. While these results are consistent with current scholarship and thus not surprising, my hope is that this paper, by providing a comprehensive and empirical framework in which to discuss judicial behavior generally and 'judicial activism' in particular, will contribute to the growing effort to steer constitutional scholarship away from abstract theories of judicial review and toward a more grounded understanding of the role judicial review and constitutional interpretation actually play in our legal system. I also hope to illustrate the value that basic, easily accessible empirical information can add to that scholarship.

Rehnquist Court, Judicial Activism, Empirical Legal Studies

Abstract:
Despite the high degree of interest generated by Supreme Court confirmation hearings, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their voting behavior once on the Supreme Court. This paper begins to explore this potentially rich area by examining confirmation statements made by nominees regarding three different methods of constitutional interpretation: stare decisis, originalism and the use of legislative history. We also look at nominees' statements about one specific area of law: protection of the rights of criminal defendants. We then compare the nominees' statements to decisions made by the Justices once confirmed. Our results indicate that confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior. Inquiries into specific issue areas - such as the rights of criminal defendants - may be slightly more informative. We emphasize, however, that this study is a preliminary look at this issue. As such, we hope this piece stimulates discussion regarding how to best use the wealth of information provided by confirmation hearings to facilitate a better understanding of the role those hearings do - or could - play in shaping the jurisprudence of the Supreme Court.

Constitutional Law, Supreme Court, Confirmations, Confirmation hearings

Abstract:
Professors Robert Post and Reva Siegel have suggested that nominees to the U.S. Supreme Court should answer questions posed at their Senate confirmation hearings regarding how they would have voted in cases the Supreme Court has already decided. This practice, they argue, would enable the Senate to exercise its constitutional advice and consent duties without compromising judicial independence. This paper uses positive scholarship to support Post and Siegel's conclusion that objections to their proposal are not easily justified by the concerns about judicial independence on which they purport to be based. In doing so, I examine the confirmation hearing transcripts of the nine justices who sat on the final Rehnquist Court. I find that these nominees in fact provided opinions about many previously decided Supreme Court cases, and that there was surprising variety in the cases on which they would and would not opine. I also show that much of that variety is not attributable to the distinction drawn by the nominees themselves between opining on settled and unsettled cases. The actual practice of these nominees thus supports Post and Siegel's conclusion that concerns about the impartial decision-making independence of the individual justices, even taking the nominees' own views of what that impartiality requires into account, do not appear to be what is animating objections to their proposal. I then consider whether those objections are nonetheless justified by concerns that adoption of the Post-Siegel proposal would compromise the institutional independence of the Supreme Court itself, by effectively conditioning confirmation on the nominees' opinions about specific cases. Drawing on both the actual practice of the Rehnquist Court nominees and existing positive legal and political science scholarship, I argue that this objection also is suspect, and, moreover, that taking positive legal scholarship in this area seriously casts doubt on the very premise on which it rests. I thus conclude that the Post-Siegel proposal has the potential to bring additional information and clarity to the confirmation process, at little cost to judicial independence.

Constitutional Law, Supreme Court, Confirmation

Abstract:
This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated goals, was more unified than it has been in recent years, although this relative unity failed in the term's most important cases.

Supreme Court, Constitutional Law, Empirical, Justice Roberts, Justice Alito

Abstract:
The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for 19 years, longer than any other chief justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the "swaggering confidence" that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing to reverse liberal precedents bequeathed to it by the Warren and Burger Courts? This paper attempts to shed light on these questions by examining the record of the Rehnquist Court "by the numbers". Specifically, how many times did the Court use its power of judicial review to invalidate federal legislation, how many times did it do so to invalidate state legislation, and how many times did it do so to overturn existing judicial precedent? Within each of these areas, I also identify the issue area in which the Court rendered its decision, the ideological direction of the decision, and the vote margin by which the decision was made, and compare the Rehnquist Court's record in these areas to the records of the Warren and Burger Courts. Finally, I use this numeric information to identify and discuss the issue areas in which Justice O'Connor's retirement is likely to most impact the Supreme Court's jurisprudence. By examining the legacy of the Rehnquist Court from this simple, empirical perspective, this paper contributes to a growing body of legal scholarship committed to shifting discussion about the Supreme Court away from contested theories of constitutional interpretation and toward a more factually grounded examination of the role the Supreme Court actually plays in our legal and political system. I also hope to illustrate the role that basic, easily accessible empirical information can play in that examination.

Rehnquist, empirical, empirical legal studies, activism

Abstract:
In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation process. Second, Professor Ringhand explains how an ideologically-based approach to the confirmations process is not just unobjectionable, but can in fact play a normatively desirable role in ongoing efforts to construct alternative constitutional narratives, narratives that attempt to guide or justify the use of judicial review while also incorporating a realistic understanding of the capacities of the Supreme Court. She concludes by reviewing the historic use of ideology in the confirmations process, and discussing several additional benefits that could result from the more open acknowledgement of the role ideology has - and does - play in that process.

Supreme Court, confirmation

Abstract:
This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about the role of judicial power, and our efforts to explain and contain that power, in the United States.

Britain, comparative, judicial review, activism

Abstract:
This article discusses the ways in which the ambiguous concept of equality has been used in the British debate regarding the financing of political election campaigns. It identifies three concepts of equality commonly used in that debate: 'equality of arms' between political parties, 'equality of influence' between citizens, and 'equality of access' to the so-called 'marketplace of ideas'. The article than discusses each of these concepts of equality in greater detail, and, in doing so, identifies four broader principles underlying the use of these concepts in the election financing debate. The article concludes that, although the language of equality is used often and with great effect in the election financing debate, the concepts of equality being invoked are rarely independently valuable concepts. Instead, the concepts of equality used are valued in the election financing debate because they promote one of the four underlying principles. These principles themselves, however, involve complex questions of democracy and distributional fairness, and are not uncontroversial. I thus suggest that future debates regarding election financing could be enhanced by a more direct discussion of the merits of these underlying principles.