Constitutional Commentary, Vol. 24, No. 1 (Spring 2007), pp. 43-102


This paper attempts to quantify one of the most deeply contested terms in constitutional law: “judicial activism.” Most discussions of “judicial activism” define activism either in reference to a particular political ideology (such as complaints about “liberal activist judges”) or a particular method of constitutional interpretation (such as assertions that a decision was “activist” because it was not based on the original meaning of the Constitution). This paper sidesteps those debates, focusing instead on an empirical examination of how recent U.S. Supreme Court justices have in fact exercised their judicial power. I do this by examining the voting records of the individual justices in three areas: how often did the justices vote to invalidate federal legislation, how often did they do so in relation to state legislation, and how often did they vote to overturn existing judicial precedents? I also examine the issue areas in which each of the justices cast these votes and the ideological direction of the votes.

This examination of actual judicial behavior reveals several interesting things, each relevant to the “judicial activism” debate. First, conservative justices as well as their more liberal counterparts actively “replace” legislative choices with their own preferred outcomes, and they do so at a roughly equal pace, although, as shown below, they do so in different types of cases. Second, both liberal and conservative justices use their judicial power in ideologically predictable ways: with few exceptions, liberal justices use their power to invalidate legislation and overturn precedents to generate liberal outcomes and conservative justices use that power to generate conservative outcomes. Finally, the most conservative justices on the Rehnquist Court used their power in some surprising ways, ways not easily attributable to the originalist methods of interpretation they otherwise advocate. That Court's most conservative justices, for example, did not exclusively or even primarily use their power to invalidate federal statutes in federalism cases. While such cases were an important part of those justices jurisprudence, most of the federal invalidation votes cast by the Court's conservative justices were actually cast in First Amendment cases--an area with a much more uncertain originalist pedigree.

This look at the actual voting behavior of recent Supreme Court justices thus provides specific, empirical data supporting what is evident to many Court-watchers: the interesting difference between the Court's “liberal” and “conservative” justices is not whether they used their power of judicial review “actively” but how they used that power. Liberal justices used the power of judicial review to protect certain First Amendment rights, certain civil rights, and the rights of criminal defendants; conservative justices used the same power to protect other First Amendment rights, other civil rights, and states' rights. The pertinent question, therefore, is not whether we want our justices to be “activist”, but how and in which areas we want them to actively use their power. Do we want justices who protect civil and privacy rights or commercial speech and states' rights? Who defer to Congress or to state legislatures? Attaching the epithet of “activism” to some of these uses of judicial power but not others adds heat but little light to this important debate, and my hope is that the information presented here will help shift the public debate to more productive ground.