The Scientific Study of Judicial Activism
Frank B. Cross
University of Texas at Austin - Department of Information, Risk and Operations Management; University of Texas at Austin - School of Law; University of Texas at Austin
Stefanie A. Lindquist
University of Texas at Austin - School of Law
Minnesota Law Review, Forthcoming
Vanderbilt Law and Economics Research Paper No. 06-23
Univeristy of Texas Law, Law and Economics Research Paper No. 93
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.
Number of Pages in PDF File: 29
Keywords: judicial activism
JEL Classification: K40
Date posted: October 24, 2006
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