In a recent article, Professor Lori Ringhand counted the number of votes that each Justice of the Rehnquist Court cast from 1994 to 2005 to strike down state or federal legislation. Ringhand presented the federal and state votes separately, without combining them, but a pretty remarkable thing happens when you combine the two sets of figures (Tables 1 and 6): It turns out that there is a remarkably degree of uniformity in the total number of votes to strike down legislation.
If I’m reading Ringhand’s figures correctly, 8 of the 9 Justices voted to strike down legislation between 57 and 67 times over that period. Chief Justice Rehnquist is the only outlier, with only 46 votes to strike down legislation. I put the numbers up on a chart here:
I should add that these sorts of numbers may incorporate a significant degree of subjectivity. For example, the line between a vote to strike down legislation and a vote to invalidate executive action more generally is hard to draw.
Still, I found the combined chart pretty fascinating. We tend to hear primarily about the Justices’ votes to strike down federal legislation. It’s relatively common for commentators to say that the conservatives vote to strike down federal legislation more often than the liberal Justices do. However, the combined chart suggests a remarkable degree of uniformity in the rate at which the Rehnquist Court Justices voted to strike down legislation if you combine both federal and state cases. Ginsburg, Thomas, Souter, Scalia — they all vote to strike down legislation at almost exactly the same rates. They differ on which statutes should be struck down, but at least based on the docket of the Rehnquist Court did not differ on how often statutes should be invalidated.