Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court

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.

Keywords: Rehnquist Court, Judicial Activism, Empirical Legal Studies