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The Scientific Study of Judicial Activism

29 Pages Posted: 24 Oct 2006  

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

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 Classification: K40

Suggested Citation

Cross, Frank B. and Lindquist, Stefanie A., The Scientific Study of Judicial Activism. Minnesota Law Review, Forthcoming; Vanderbilt Law and Economics Research Paper No. 06-23; Univeristy of Texas Law, Law and Economics Research Paper No. 93. Available at SSRN: https://ssrn.com/abstract=939768

Frank B. Cross

University of Texas at Austin - Department of Information, Risk and Operations Management ( email )

CBA 5.202
Austin, TX 78712
United States
512-471-5250 (Phone)
512-471-0587 (Fax)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas at Austin

2300 Red River St., Stop E2700
PO Box Y
Austin, TX 78713
United States

Stefanie A. Lindquist (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1319 (Phone)

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