University of Chicago law professors Thomas J. Miles and Cass Sunstein summarize their effort to determine which Supreme Court justice is most "activist." Rather than look at constitutional cases, or challenges to statutes, they looked at challenges to federal agency actions, judging a justice to be "activist" based upon how often he or she votes to overturn an agency decision. Here is how they describe their approach:
Everyone looks at the high-profile constitutional cases, but to get a real sense of how justices approach their jobs, it's best to analyze the more routine, less-visible cases that are often more important to people's daily lives.Using this approach, they conclude the most "activist" member of the Court is Justice Scalia, and the most "restrained" is Justice Stephen Breyer. Turning to judicial ideology, they found Justice Thomas had the most "conservative" voting record (and was the most "partisan" or ideological), and Justice Stevens was the most "liberal." The least ideological, according to their methodology, was Justice Kennedy.For this reason, we examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.
We used clear and simple tests to code the decisions of these agencies as either "liberal" or "conservative." For example, we counted an environmental regulation as "liberal" if it was challenged by industry as too aggressive, or as "conservative" if it was challenged by an environmental group as too lax.
We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him "neutral," in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him "partisan." If a justice regularly voted in favor of agencies, we deemed him "restrained," because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him "activist," in the literal sense that he frequently used judicial power to strike down decisions of another branch.
Miles and Sunstein note that their analysis says nothing about which hustices are "right" or "wrong." Rather, they were seeking to develop a neutral methodology for measuring one sort of judicial "activism" -- in this case rejecting the decisions of federal agencies. That said, without looking more carefully and their methodology and data set, in particular how they coded specific cases, it is difficult to evaluate their claims. (Time permitting, I'd love to dig into this, but the new baby and pending writing commitments may preclude it.) It is an interesting analysis nonetheless.
Related Posts (on one page):
- Whelan Rejoinder to Miles/Sunstein:
- How Useful is the Concept of "Judicial Activism"?
- Miles and Sunstein's Response to Their Critics:
- Miles/Sunstein Response to Critics:
- Whelan on Miles/Sunstein:
- Measuring Ideological "Activism" in Supreme Court Justices' Decisions to Overrule Regulatory Agency Actions:
- Which Justice Is Most "Activist"?
Still, it will be interesting to see if their analysis makes sense in terms of the details (whatever we might have preferred them to have called their categories.)
This gets to reality, as activism reflects both an innate willingness to review and reverse the actions of other branches (not necessarily so bad) and a tendency to reverse other branches on ideological grounds (somewhat worse). The two need to be distinguished.
Right. In other words, "activism" means a decision I believe is incorrect, and any attempt to attach an actual meaning to it is impermissible.
Do you mean to say that all interpretations of the constitution are equally valid? That is the necessary logical implication of your comment.
That's not what NaG is saying—unless you believe Constitution is indeterminate.
I'd argue that "activist" means decisions contrary to custom and tradition--at least this is the sense in which the word is commonly used.
I leave it as an exercise to reader to determine whether Thomas for instance is "activist" under this definition, but let me put on the table a point for discussion: Thomas is the most non-ideological justice.
This is the most politically loaded public meaning of "judicial activism" out there--but used in this way it functions only as a term of abuse, even assuming each case admits of "the correct" ruling. But "activism" understood as the opposite of judicial "restraint" is actually a quite meaningful term--it means that in cases of doubt or discretion, judges defer to the more political (in the sense of democratically accountable and supplantable) branches of government, including the bureaucracy.
As a side note, the constitutional basis of Roe is of course debated, regardless of agreement with the result. "Most liberals" probably have differing views about where the case might be rooted--the Ninth Amendment, the privileges or immunities, due process or equal protection clauses, the Thirteenth Amendment (in the sense of forced pregnancy being a form of involuntary servitude), are some possibilities. Visceral disagreement with the result doesn't mean there is no plausible basis for an unenumerated constitutional right to abortion.
Sounds like bias in the methodology to me.
The study assumes that liberal and conservative decisions are equally valid, or at least equally influenced by the questionable constitutionality of administrative agencies. It could well be that "conservative" admin. agency decisions are more in line with the Constitution; as such, a non-activist judge would uphold those more frequently.
What? I don't recognize that as the definition of "activism". Your definition of 'decisions that contradict the constitution' is just "being wrong".
I would define activism as:
Judicial Activism - When a judge rules a certain way because she believes that the outcome is better as a policy matter. In other words, the judge places her opinion above the opinions of the framers or Congress. Activism is often summed up by the phrase "legislating from the bench."
That is a bit fair to call Scalia "activist" because he overrules agencies, because he argues that he overrules them in favor of the text set out by Congress.
On the other hand, the agency clearly considered the congressional text to be ambiguous. So Scalia is activist in the sense that he thinks he understand language better than the agency charged with enforcing it on a 24/7 basis.
PatHMV- activism is a loose and fast phrase- sometimes people use it basically as the antonym of "textualism" (some might call that a weasily definition) but I've also often seen it used it when judges make a decision that they disagree with the legislature or the executive interpretations- the way Miles and Sunstein are using it now. Also, exactly where is the straw man you're talking about?
This comment seems to assume that an "activist" decision is necessarily wrong. And if you want to define it that way, I suppose it is. But then you might as well use the word "wrong" or "liberal and wrong" or just "liberal." If you want to take "activism" seriously as an analytical category, that necessarily means giving it a definition that is independent of "wrong" or "liberal."
PatHMV's suggestion -- "judicial decisions which are made based on the judge's personal policy preferences rather than the actual text of the Constitution and relevant statutes" -- seems too close to the merits to be all that helpful. But I question whether conservatives are even willing to apply that definition neutrally -- it would seem to apply to the Supreme Court's Eleventh Amendment jurisprudence, for example, which is admittedly not based on the text of the Eleventh Amendment.
Yeah, because the idea that supreme court justices are supposed to exercise judicial review as a check on the executive branch is just plain weird! Everyone knows activism means acting ruling for liberal decisions and not this crazy notion of actively engaging in fundamental judicial activities.
It is well-established that the rule of law generally requires deference to agency interpretations. Thus, when the Court reverses an agency interpretation, it is engaged in activism. When that activism is motivated by an ideological bias, one might find it to be more pernicious than simple disagreement with the agency's interpretation.
The notion here is that by looking at how the Justices treat the legislative and executive branches, the positions of which are manifest in agency action, one can determine whether that Justice is "activist," that is, guilty of what conservatives have been crying about for years -- a willingness to write their own views into law, rather than apply the law as it stands.
And I note that this is only tangentally related to the originalism/rationalist debate. One can be an activist originalist (see Scalia) or an activist rationalist (see Brennan). On the contrary, one can be a restrained rationalist (Breyer) or a restrained originalist (hmmm...I'm in need of an example...anyone, anyone? Bueller?)
It's also noteworthy that Kennedy shows up in the middle. In constitutional cases it is generally understood that briefs and arguments are pitched directly to Kennedy (and in the case of the Sixth Amendment, Scalia), since the rest of the justices are known quantities. This report's findings suggest that he should be the target audience in non-constitutional cases also.
Interesting research, regardless of whether the label "activist" is appropriate. I've been reading about the Chevron doctrine lately, and I'm wondering if anyone knows where Miles &Sunstein will publish their full article.
(@Constitutional Crisis: I would consider Chevron to be more a matter of separation of powers than rule of law, but that's just me...)
This, to me, is the most interesting test. Are those here who regularly decry "liberal activist judges" equally appalled by the Court's 11th Amendment jurisprudence, which is, to say the least, less than faithful to the text of the Constitution?
That's not to say the definition of activism (policy preferences over the text) advocated by the early comments is wrong; it's just not terribly helpful for broad-based studies. The method Sunstein and Miles uses does raise problems of "the drunkard's search," but there's a respectable argument that while the Constitution is not indeterminate, it certainly lacks clear meanings at important junctures, and that in those gray areas, a Court may either defer or reject the interpretation of the democratic branches. Knowing whether a judge does this or not, I submit, is useful information.
I suspect many of these objections (ala Whelan) are a farce, regardless. How many opponents of "judicial activism" ala Roe v. Wade would be willing to support a national anti-abortion law under Raich if Roe was overturned? How many advocates of the second sort of "activism" leaped to condemn Alden v. Maine? This number may not include too many readers on this blog, but I suspect it would get a fairly large proportion of those conservative politicians who use the phrase "judicial activism" as an epithet.
Personally, my understanding is that conservatives used the term first, and liberals have subsequently appropriated it and used it to mean something different. Whether this is because of genuine misunderstandings of how conservatives used the word, misuse of the word by conservatives, or intentional straw-manning by the left is immaterial. And even if my understanding is wrong, and there's always been a debate about what the phrase "judicial activism" means, the simple, indisputable fact is that both sides do indeed define it differently.
There are two different concepts, and to promote understanding of the debate, there should be two different words. It's certainly to the credit of the authors that they carefully define what they mean by "activism." But in a public debate like this, the strictures of the definition quickly get lost. One side or the other needs to pick a different word.
And on the other end, former Administrative Law Professor Breyer's professed deference to Agency determinations. This is just a weird study. Certainly for those two Justices, the study captured no more than empirical evidence of what they have been preaching since before either were ever on the court. Insights indeed.
As such, I suggest that a better word than "activism" for judiciary restraint of agencies be chosen. How about "doing the damn job of checks and balances"? :)
As a result, judicial conservatives (not necessarily the same as political conservatives) to describe a decision that appeared to be based on a desire to achieve social or political change --- and not on existing law --- as an "activist" decision, i.e., made in the spirit of New Left social activism.
It seems as though the definition of activism as "striking down a lot of laws" is the coinage of judicial liberals (again, not necessarily the same as political liberals) who feel more comfortable with criticizing judges who strike down a lot of decisions than judges who base their decisions on social activism.
So I don't know why I bothered learning to write. Or read.
Never mind.
No, of course not, but I believe many provisions of the Constitution have more than one defensible interpretation.
When people say, "This ruling is inconsistent with the text," they often mean, "This ruling is inconsistent with my interpretation of the text."
I'm not sure that this is it, as I can't listen to it right now.
The key point is that most of the people who ratified the constitution presumed that sovereign immunity presumptively belonged to states. James Wilson and others might have been correct that the idea of such sovereign immunity was hard to reconcile with the idea of natural right, but that does not mean it's not what the people wanted and ratified. Moreover, the eleventh amendment, they thought, confirmed that interpretation.
The other important question here is the question of precedent. Is there a constitutional equivalent of adverse possession. After a long enough time, does bad law become constitutional, just as after a long enough time squatter on someone else's property becomes an owner?
But M&S are pulling deliberate BS in defining it solely in terms of federal agency deference, and then using it to say, "see? not what you thought, eh?" That's a sleight-of-hand to connect it to the broader debate about activism, as most people arguing about Roe or 11th Amendment or whatever probably had no preconceived notion about activism-re-federal-agencies-only. Instead, most arguments center on Roe, and on Lawrence, and on substantive due process generally, and most of those cases are constitutional attacks on democratically-adopted STATE laws. And to the extent that a potential Roe reversal is also described as activist (as anti-precedent), that shows that both sides of the Roe debate agree that activism involves cases such as Roe, not merely agency cases.
So M &S here are trying to fight the Roe etc. battle, but without joining it. A few years ago, some other academics played the same game (sorry, no time to Google), but by measuring only invalidation of federal laws (to pick up 11th Amendment cases) but excluding all state law cases (again, conveniently excluding abortion etc.). At the time, many critics noted the convenient gerrymandering, and Sunstein must have been aware of it.
So to play the same game again is bogus. Again, there may be a fair debate about activism more broadly. And there may be a separate legitimate debate about federal agency deference and whether Scalia is a hypocrite on selective use of Chevron or whatever. But trumpeting a study on the latter as having bigger implications is BS.
If "wrong" is subjective, (Rather than just something that it's difficult to be objective about.) then we might as well replace constitutions with sheep entrails, in as much as when nobody can be wrong, nobody can be right, and having a text serves no real purpose except to generate an illusion of the rule of law.
No.
And for those who care about this sort of thing, "sovereign immunity" is not the same thing as Eleventh Amendment immunity. Whether a state is immune to suit in its own courts by its own citizens is a matter of state law (some states have never had sovereign immunity), about which the Constitution is silent. No state is sovereign in the courts of a different sovereign. If a citizen of New Jersey wants to sue a New York State entity in New Jersey courts, New York cannot plead its sovereign immunity in New Jersey's courts. But New Jersey is polite about it and declines to hear such cases as long as -- and only as long as -- New York returns the favor.
Before the 11th Amendment was adopted, there were damn few ways, sovereign immunity aside, that a state could be sued in federal court. There was no such thing as general federal question jurisdiction, and the main way to sue a state in federal court, as in Chisholm v. Georgia, was through diversity jurisdiction. Obviously, you couldn't sue your own state in diversity jurisdiction. The 11th Amendment closed out the diversity option, but did purport to reach anything else. There wasn't much else to reach until the Reconstruction era civil rights acts and general federal question jurisdiction came around in the latter half of the 19th century. Then, they just made it up to prevent citizens from suing their owen states. This may or may not have been wise, and may or may not have reflected that a Constitutional amendment sized consensus would have opposed a contrary reading, but they still just made it up.
Just a footnote to your post, with which I otherwise agree: If one state wants to sue another, it files suit in the SCOTUS under the original jurisdiction clause.
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One could define "activist" as "results-oriented." Granted, a judge who reaches a result that he personally likes is not automatically acting in an activist mode in that instance; the law may have warranted that outcome. Roe seems to be the classic example of "activist" judging. One benchmark is that pro-choice persons (of both liberal and conservative persuasions) think that it is wrongly decided. It is not that they think there is an unenumerated right to abortion in the Ninth Amendment and the case could have been decided (albeit incorrectly) on those grounds; many people simply believe that it is not a constitutional issue.
Why not use a metric that accounts for cross-ideological approval or disapproval? or fealty to principles, even in the face of an undesirable result?
Original jurisdiction, not exclusive jurisdiction.