Round-Up: Scholarly Article Edition
Andrew Cohen, who writes the Washington Post’s Bench Conference blog, has this entry called “The Myth of Judicial Activism.” In it, he cites this forthcoming paper by University of Kentucky Professor Lori Ringhand entitled, “Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court.”
Doug Berman, in a post here at the blog Sentencing Law and Policy, highlights a forthcoming article called “Making Sentencing Sensible,” which he co-authored with Stephanos Bibas. The article (available in RTF format here or converted to PDF here) offers advice for the Court in the upcoming sentencing case, Cunningham v. California.
Professor Berman has another post highlighting a different article of his; this time, he looks back at the recently decided case of Hill v. McDonough. The paper, “Finding Bickel Gold in a Hill of Beans,” can be downloaded here.
UPDATE: One more forthcoming article that may be of interest as the Term approaches: “The U.S. Supreme Court’s New Dukedom, The Hour and Year, or a Proposal Quite Near,” by Brian Potts of UC-Berkeley. His article addresses the upcoming case US v. Duke Energy Corp.; that case was also discussed here last month by Paul Gutermann of Akin Gump.
Ringhand declares in her introduction that “[t]he use of judicial power to invalidate federal and state laws, and to overturn precedent, is not, of course, an uncontested way to measure ‘judicial activism’. It is, however, the only measure that does not rest on an antecedent determination of whether a judge reached a ‘correct’ constitutional decision in a given case.”
It’s quite hard to take this claim seriously; she seems to be saying that, since the problem to be studied does not lend itself to easy resolution by empirical study, then the definition of the thing to be studied must be changed to something that does lend itself to empirical study. To attempt a quantitative study of judicial activism by conducting a quantitative study of the willingness of a justice to strike down a law is rather like attempting to undertake a quantitative study of bird migratory routes by conducting a quatitative study of the wingspans of migratory birds. Even that comparison fails, in fact, because while a bird can’t migrate without wings, an activist judge can certainly be activist without striking down legislation. As I explained last August, objecting to an NYT op/ed by Paul Gewirtz which attempted a similar results-oriented inversion of the activist label by redefining judicial activism as a willingness to strike down legislation (Ringhand’s essay is merely a better-dressed and better-researched recitation of the same piece), “it is not Judicial Activism to strike down a statute. The act itself is inherently neutral; it is a tool, [a] part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional[;] [r]ather, a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional.”
Moreover, her conclusion (that “the ‘judicial conservatives’ sitting on the Rehnquist Natural Court were as or in some cases more ‘activist’ than their more ‘liberal’ counterparts“) is to some extent incompatible with her predicate (that “[t]he use of judicial power to invalidate federal and state laws, and to overturn precedent, is not … an uncontested way to measure ‘judicial activism’“). Ringhand is attempting to prove that the unladen African Swallow has a different migratory pattern than a unladen European Swallow by way of a discussion of comparative wingspan and air speed velocity. At the risk of cynicism, I find it quite hard to believe that anyone would undertake such an endeavour purely for the love of statistics.
Hence, an empirical study which “does not address the substantive questions of when or how judges should use their powers of judicial review to invalidate legislation or overturn precedent” is necessarily not a study of judicial activism; it can only ever be, at very most, a study of how willing a judge or justice is to strike down legislation, and in that regard, Ringhand’s paper ultimately compares poorly to other empirical approaches to the same subject (see, e.g., R. Colker & J. Scott, Rehnquist & Federalism: an Emperical Perspective in C. Bradley, THE REHNQUIST LEGACY, 279) (2005).
Comment by Simon — September 14, 2006 @ 5:20 pm
Good points, Simon.
I’m not surprised. Mr. Cohen does not post thoughtful and balanced articles. His view is severely skewed to one political side.
Comment by gideon1789 — September 15, 2006 @ 3:40 pm
Cohen’s comments should be read in light of his earlier comments on judicial activism, wherein he offered the following nugget of wisdom: “[e]verytime a judge makes a decision, any decision whether you like it or not, that judge is ‘acting.’” By revealing either a lack the elementary grasp of language required to understand the difference between action and activism, or else his willingness to ignore that paramount distinction in the service of his political agenda, he has told us precisely how much weight to give his opinion on the matter.
Comment by Simon — September 15, 2006 @ 8:37 pm
So Simon, let’s start out with a definition of judicial activism “that does not rest on an antecedent determination of whether a judge reached a ‘correct’ constitutional decision in a given case.” Or give some examples of cases exhibiting activism with some explanation of why you claim they do so. Then we’ll see if or how we can measure it.
Comment by r.friedman — September 16, 2006 @ 9:12 am
r.friedman – I already provided a definition in my first post. Yes, it “rest[s] on an antecedent determination of whether a judge reached a ‘correct’ constitutional decision in a given case,” but that is in the nature of the term.
I gave an analogy with birds earlier, but perhaps another one suggests itself: if you set out to measure the weight of a table, no matter how much you like using measuring tape, you aren’t going to produce a valid answer to the question. If you instead redefine the question, and instead of determining the table’s weight, determine its width, then you may well have discovered something useful – but you have not answered your original question, and to present your conclusion as if it does answer the question (as, for example, Ringhand does by presenting some data as to how often judges have struck down legislation) is false and dishonest. Ringhand’s thesis strikes me as being yet another attempt to deflect the “judicial activism” term; having failed to neutralize it by sucesfully arguing that liberal judges are not activist, the new strategy approaches the problem from the other direction: it seeks to neutralize the term by finding a way – any way – to argue that all judges are activist to a greater or lesser extent, and that conservative judges are just as “activist” as liberal judges. And what better a way to do that by crafting a plausible-sounding definition that could be empirically tested – as we all know, numbers don’t lie, right?
At the risk of guilding the lily, if the thing that you have chosen to study does not fit the probative method you have chosen, you must choose a different method, not – as Ringhand and Gewirtz prefer – arbitrarily discard the definition and choose another one that better suits your preferred methodology.
Comment by Simon — September 17, 2006 @ 6:44 pm
Simon —
I’m sorry, I don’t see a definition in your earlier post. But even if it is possible to know a priori the correctness of a decision (sort of in the way the common law supposedly always exists, just parts of it are as yet unrevealed) that would just make a decision right or wrong.
I thought activism was something more — a willingness to overturn precedent, to grant radical relief, to decide cases affecting the core functions of coordinate branches, to fail to defer to the findings of “expert” agencies, etc. For example, it ought to be possible to rank judges or courts on their use of the various abstention doctrines, particularly prudential; not only would that give some content to the word “activism”, it would expose some judges or courts as derelict in their duty to decide cases properly before them.
Comment by r.friedman — September 18, 2006 @ 8:59 am
“At the risk of guilding the lily, if the thing that you have chosen to study does not fit the probative method you have chosen, you must choose a different method, not – as Ringhand and Gewirtz prefer – arbitrarily discard the definition and choose another one that better suits your preferred methodology.”
This also pretty much sums up the difference between originalism and the “Living Constitution” approach – a redifintion of the Constitution to suit a preferred outcome. Scalia said on the subject of the “Living Constition”:
“This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.”
He’s right, of course. The Consitution is just a piece of paper. It is simply describes a framework of government that people all agree to work within. It does not have magical ability to protect us from anything – it’s only power is in its legitimacy as a shared understanding of how things ought to be. The supreme danger of the “Living Constituion” approach is that the shared understanding is not longer subject to the standard democratic process, and therefore its legitimacy is now gone – which is why Scalia is 100% right when he states:
“I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted.”
Comment by Ben Kennedy — September 18, 2006 @ 9:04 am
R.Friedman:
I said on September 14, 2006 at 05:20 PM that:
I think that decision is concise, and accurate. That it “rest[s] on an antecedent determination of whether a judge reached a ‘correct’ constitutional decision in a given case,” in my view, does not mean the definition is wrong – it means that if one attempts to quantify judicial activism using a tool which cannot handle “antecedent determination[s] of whether a judge reached a ‘correct’ constitutional decision in a given case,” you’re using the wrong tool. I’m not saying that empirical legal studies doesn’t have a place; it’s a very powerful tool that can produce startling and effective results when applied to an area in which it has probative value. But if Ringhand demonstrates anything in her paper, it is that attempting to determine who is more activist using so coarse a metric as is demanded by an empirical study is using a hammer to do the work of a drill. A hammer is a great tool, but not every problem is a nail.
Part of the reason that striking down laws cannot be accurately conflated to judicial activism is that judicial activism does not always mean striking down a law. Consider: if a law is patently unconstitutional, and a judge chooses to uphold it nonetheless, should that not be said to be judicial activism? Judicial activism is the departure, in service of personal preference, from the Judge from what is required of her by their office. If the Supreme Court had upheld the line item veto act in Clinton, that would have been an activist decision, even though it did not strike down a law. Likewise, in my view, McConnell, where the court declined to strike down a patently unconstitutional law, is just as much an act of judicial activism as were Roe or Lochner, where the court declined to uphold patently constitutional laws.
I think that you – and Ringhand et al – are making the mistake of conflating the tools of the trade with the trade itself. Imagine a man standing outside Congress holding a sign; does that constitute “activism”, per se? Certainly he is engaged in an action, but as I keep trying to explain, action is not activism. So before you answer, consider: while it’s true that activists often hold signs outside of Congress, don’t you need to know what the sign says before deciding whether our signholder is engaging in activism? What if the sign says “bagels, $2?” Is our sign holder engaging in activism? No. Before you can answer the question, you have to know what the sign says; statistics about how long he has stood there or how many signs he has lack real probative value; they might provide some abstract data that permits a better quality of guess, but it is far simpler to just ask the obvious question (”what does the sign say?”) than to engage in a lengthy quantitative study that will produce indeterminate results. So for our bagel seller, so for our judge. If you see a judgement striking down a law, you cannot determine whether that is judicial activism without knowing what the law says and under what authority it was enacted. You can’t determine if the judge is protesting or selling bagels by numbers alone.
Can judicial activism take the form of “a willingness to overturn precedent, to grant radical relief, to decide cases affecting the core functions of coordinate branches, to fail to defer to the findings of ‘expert’ agencies, etc.“? Yes, of course. But on the other hand, as we have seen, activism can also take the form of failure to uphold laws, and activism can also take the form of the failure to grant radical relief when it is demanded. Do you think that Bivens was judicial activism? I don’t. Were Weeks v. United States and Mapp judicial activism? I don’t think so. Boy, if striking down laws and ignoring precedents is judicial activism, you have to think that Brown v. Board was judicial activism. I don’t think it was. Certainly those cases granted relief that might be characterized as radical in the context of the time. But while the Constitution does not demand the exclusionary rule, it does make a demand which is well-served by the exclusionary rule, and simply saying that the exclusionary rule was “radical” or that creating a cause of action stemming from the Constitution itself was “radical” does not mean that those decisions were “activist.” They undertook the action demanded of the judges by the Constitution. It would have been failure to act that was activism in those cases.
Now, as I mentioned in my previous comment, I think that what Ringhand et al are trying to do is to say “yes! Bivens was an activist decision” because what they’re really trying to do is to emasculate the term judicial activism, by one means or another. I don’t think the goal was ever to disprove the charge that liberal judges are more likely to be activist judges than are conservatives, I think the goal was to take the issue out of play. Having failed to do that by one means, another was sought: if one can’t disprove the thesis that Roe, for example, is an activist decision, why not redefine the term activist so broadly that every action by a judge can be cast as activism – that is, why not say “sure, liberal judges are activist, but on the other hand, if you use the metric we’re offering, then so is every other judge! And as it turns out, conservatives are even worse!” Pay no heed to that man behind the curtain! But if people fall for it, wouldn’t that redefinition take the issue out of play, or at least, attenuate its potency?
Comment by Simon — September 18, 2006 @ 11:42 am
“Decision”? I meant “definition” in my first paragraph. LOL. I will write out “use the preview button” 100 times. :p
Comment by Simon — September 18, 2006 @ 11:43 am
Simon –
I don’t think your definition of activism is measurable. Even if we take Supreme Court holdings to be the final word on constitutionality, you still have to face up to the fact that “we are not final because we are infallible, but we are infallible because we are final.” If there’s a circuit split, say 12 judges one way and 7 the other, and then the Supreme Court rules 6-3 for the minority view, can we say that the 3 and the 12 are activists?
Even if a judge is reversed every time he is reviewed, it does not necessarily mean that he is an activist, it may only be that he differs in his understanding of governing law (although he might also be a really bad judge). The law is an intellectual exercise in which differences of opinion are to be expected. The terms that have come to be used during confirmation, “in the mainstream” versus “extremist”, show tolerance for this division of opinion (although they may be codewords that mean something else). If you want “activist” to mean something other than “someone with whom I disagree,” you’re going to have to do better than this.
Comment by r.friedman — September 18, 2006 @ 12:43 pm
I don’t agree that it isn’t measurable under that definition – it simply isn’t measurable unless you first determine what an acceptable range of “right” outcomes is for a given case. Of course you’re entirely right that reversal statistics, freestanding, are per se indicative that a judge is an activist (although it is the implication of Ringhand’s thesis that it might well be in her view); the ninth circuit is more frequently reversed than any other circuit in the country, but that is not from whence their reputation springs.
Likewise, in the circuit split example you gave, there is no way to determine if the 3 and 12 are the activists by that information alone – or even that anyone is being an activist. There is, of course, a distinction between a decision that is “wrong”, in the sense that one disagrees with it, and a decision that is activist, in that it cannot possibly be correct and is clearly motivated by something other than a best-faith effort to give effect to the provision of the statute or Constitution being interpreted. That can only be determined by looking at the question presented. If it’s a constitutional case, I have to concede that there is often more than one valid answer, but even in a case of first impression, the original meaning of the text and secondary authorities will almost invariably create a range of outcomes which are legitimate and others that aren’t. In such a case, you might not be able to say that any answer other than “A” is wrong, but you can certainly say that whatever the right answer is, “B” certainly isn’t it. If you have a case where the original meaning could support answer “A” or answer “B”, but you have two centuries of precedent saying “A”, I think stare decisis makes a pretty compelling case that if your answer is “B”, you’re engaging in judicial activism, and likewise, if you have a case where the original meaning could support answer “A” but absolutely cannot bear answer “B”, then answering “B” – unless you have an outstandingly strong line of unbroken precedent – is almost certainly going to be not only wrong, but judicial activism.
Does stare decisis have anything to do with judicial activism? Perhaps, but it is a subtler connection than I think most people who complain about “judicial activism” appreciate. Those who condemn Kelo as judicial activism most often also consider Lawrence to be judicial activism, and vice versa; yet, in the latter case, the court ignored precedent (albeit a recent precedent – the Justices in the majority would no doubt have agreed with then-Justice Rehnquist’s observation that “important decisions of constitutional law are not subject to the same command of stare decisis as are decisions of statutory questions,” Fry v. U.S., 421 U.S. at 559), while in the former case, the court erred precisely because it followed precedent. It cannot reasonably be said that a willingness to overturn precedent is the hallmark of a judicial activist, because it of course depends wholly on the question presented and the precedent involved. A line of precedent which demands a result not foreclosed by the text and original understanding should be followed, but whether a line of precedent which suggests a result at odds with the Constitution, such as Kelo, should be protected by stare decisis or not depends on how far from the touchstone it has led, and how recent a vintage the line of precedent might be. As Justice Scalia observed at his confirmation hearings, even if it were somehow demonstrated that Marbury was wrongly decided, stare decisis would protect so venerable a line of precedent: “at some level…government is a practical enterprise, and some things, when they’re done, they’re done, and you move on.” As to where the line is drawn, that’s a difficult question. It certainly gets drawn after Marbury. It probably gets drawn after Hans v. Louisiana. In my view, it certainly does not protect Roe, and never will, even if the Supreme Court reaffirms the decision every day from now until kingdom come.
So the bottom line is, even if it resists the attempt to easily define in a simple, quantifiable empirical study, the term means what it means. You can’t simply redefine it because you aren’t satisfied with what it connotes, or because it doesn’t lend itself to investigation by your method of choice. It certainly means something more than a decision with which one does not agree; it means making a decision based on what you’d like the answer to be rather than submitting to what the law requires.
Comment by Simon — September 18, 2006 @ 2:02 pm
REALLY have to learn to use preview! I meant to write that “reversal statistics, freestanding, are NOT per se indicative that a judge is an activist” in my first paragraph.
Comment by Simon — September 18, 2006 @ 2:06 pm
By that definition, Judge Posner is an activist judge, because he starts with what he wants the outcome to be and then tries to figure out a way to justify it (per speech on C-SPAN about which I have previously written). By that definition, Justice Breyer is not an activist judge because he always tries to determine what the range of supportable outcomes is and then decides within that. Agreed?
Comment by r.friedman — September 18, 2006 @ 3:34 pm
Not to offend, but “from whence” is rendundant. Whence is sufficient.
Comment by Commentator — September 18, 2006 @ 5:14 pm
I meant redundant. I tried to correct it, but I was curbed for being malicious. I guess word usage isn’t the neutral topic it used to be. This is probably just another permutation of the Greenhouse effect.
Comment by Commentator — September 18, 2006 @ 5:15 pm
R.Friedman,
Well – perhaps 50% agreed, at any rate. ;)
Comment by Simon — September 18, 2006 @ 6:36 pm