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Activists Vote Twice

15 Pages Posted: 23 Nov 2002  

Joseph Isenbergh

University of Chicago Law School

Date Written: November 2002


The process of decision of cases by panels of multiple judges reinforces a natural tendency toward judicial activism - defined in this paper as decisions reflecting judges' personal preferences rather than neutral grounds of adjudication - because judges who suppress their personal preferences control the outcomes of fewer cases and thereby concede power to the activists.

This point is bolstered with a few observations about two recent Supreme Court cases, Bush v. Gore and Clinton v. Jones. The former is widely viewed as an instance of judicial activism while the latter is not. I argue, however, that Clinton v. Jones is a purer exercise in judicial activism.

The piece is also laced with dispeptic remarks about academic commentators, whose responses to judicial activism usually mirror shamelessly their own personal preferences.

Keywords: judicial activism, supreme court, adjudication

Suggested Citation

Isenbergh, Joseph, Activists Vote Twice (November 2002). U Chicago Public Law Research Paper No. 31. Available at SSRN: or

Joseph Isenbergh (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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