Monday, October 22, 2007

Judging The Justices

There was a fascinating op-ed piece in today's Los Angeles Times in which the authors, Thomas J. Miles and Cass R. Sunstein (both of whom teach at the University of Chicago Law School), evaluate the U.S. Supreme Court from the standpoint of judicial activism vs judicial restraint. Because both Chief Justice Roberts and Justice Alito are both new to the Court and have made too few decisions to look at, they were not included in the authors' survey. Their conclusions, while not all that surprising, were still interesting.

First, their methodology:

... 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.


OK, that seems fair enough, given the parameters of the study. Now, here are the results:

The Judicial Neutrality Award, for blind justice, goes to Justice Anthony Kennedy. From Kennedy's voting patterns, we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter, a fellow GOP appointee, is the runner-up.

Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.

Partisan voting can be found among some of the court's more liberal members as well. Justice John Paul Stevens is the runner-up -- with a 40% swing. When the agency decision is conservative, he votes in its favor 46% of the time; when it's liberal, his validation rate soars to 86%. Stevens' partisan voting rate is nearly the mirror image of Thomas'.

The Judicial Restraint Award, for the most humble exercise of judicial power, goes to Justice Stephen G. Breyer. Overall, he votes to uphold agency decisions more than four-fifths of the time. Notably, Breyer votes to uphold conservative decisions 64% of the time.

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. This is an impressively low number. Under established principles, to which all members of the court subscribe, agencies are supposed to get the benefit of the doubt.

According to our tallies, the remaining justices were neither distinctively neutral nor distinctively partisan. Former Justice Sandra Day O'Connor was almost as neutral as Kennedy and Souter. Justice Ruth Bader Ginsburg's votes had a liberal tilt, but not as much as Stevens', and the late Chief Justice William H. Rehnquist's votes had a conservative tilt, but not as much as Thomas' or Scalia's.
[Emphasis added]

Most of the results didn't particularly surprise me, although Justice Breyer as the most restrained did cause me to blink. Of course, with two new justices, next year's study (and I hope the authors repeat it) should be even more interesting as we see the results of Mr. Bush's selections.

In the mean time, I'm looking forward to the next time someone from the reich wing makes a comment about "damned judicial activists."

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2 Comments:

Anonymous Nora said...

It doesn't matter, Diane. Nobody from the reich wing (nice phrase, by the way) cares about facts and numbers. Their minds are made up, and they know who the "activist" judges are.

4:59 AM  
Blogger bitheads said...

I don't know If I said it already, but this so good stuff keep up the good work. I read a lot of blogs on a daily basis and for the most part POLITIC just wanted to make a quick comment to say I’m glad I found your blog. Thanks.


Best regards

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7:40 AM  

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