The Scientific Study of Judicial Activism

Abstract:     
Claims of judicial activism are common, from both the right and the left, but they are seldom scrutinized closely. Prior tests of judicial activism have involved simply counting the number of cases in which justices vote to invalidate statutes. This data provides a rough guide but omits any consideration of the judicial legitimacy of the statute - a decision to strike down a plainly unconstitutional statute is appropriate judicial behavior. To provide a better test, we adjust the count of statutory invalidations for each justice of the Burger Court, based upon the degree to which the votes show a consistent ideological direction, the degree to which the votes ignore the Solicitor General's position, and the number of justices who joined the decision that the statute was unconstitutional. This provides a somewhat more refined measure of the comparative activism of the recent justices. We conclude that the conservatives of the Rehnquist Court tended to be the most activist justices, but their activism paled next to the liberal activism of some justices of the Burger Court.

Keywords: judicial activism

JEL Classifications: K40

Accepted Paper Series