The Situationist

The Political Situation of Judicial Activism

Posted by The Situationist Staff on August 10, 2008

Thomas Miles and Cass Sunstein recently published their important new paper, “Depoliticizing Administrative Law ,” on SSRN. Here is the abstract.

* * *

A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to “rank” justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

* * *

Cass Sunstein published a great post, “The Partisanship Awards,” summarizing parts of that research last week on The Washington Independent. Here are some excerpts from that post.

* * *

Who are the real activists on the U.S. Supreme Court? Do Republican appointees differ from Democratic appointees? How much? Are federal judges political?

I have been studying these issues with several colleagues, including Thomas Miles, an economist and lawyer at the University of Chicago Law School, for a number of years now. One big question: Do judges show a political bias? We also wanted to see what any bias might tell us about how judges might rule in the future –- under, for example, an Obama or McCain administration. We catalogued thousands of judicial decisions — well over 20,000 — to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones. (Because Chief Justice John Roberts and Justice Samuel Alito have been on the court only a short time, we did not include them because we had too little data.) We wanted to see if some justices are more political in their voting patterns than others – and also learn something about how future administrations are likely to fare in the Supreme Court.

We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal.

We used this method because the relevant question is not whether an agency’s decision is liberal or conservative in the abstract — it is how and why that decision is challenged in its context. . . .

We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?

Our answers: Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.

Here are the results:

Table 1: Partisan Voting on the Supreme Court

Justice Gap between liberal and conservative agency decisions
(in percentage points)
Type of Agency Decision Favored
Clarence Thomas 46 Conservative
John Paul Stevens 40 Liberal
Antonin Scalia 27 Conservative
Stephen Breyer 26 Liberal
Ruth Bader Ginsburg 23 Liberal
William Rehnquist 21 Conservative
Sandra Day O’Connor 14 Conservative
David Souter 14 Liberal
Anthony Kennedy 1

This information does not tell us everything we need to know. Thomas shows the strongest partisan bias, but is he also an activist? Does he vote to strike down agency decisions at a high rate? To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions.

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Table 2: Activism and on the Supreme Court

Justice Rate of upholding agency decisions (percentage points)
Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

While the Supreme Court gets the most attention, the lower courts are also important in determining the meaning of national law and shaping national policy.

* * *

To read the rest of Sunstein’s post, which examines how Republican and Democratic appointees on the lower courts approach decisions of the Environmental Protection Agency and the National Labor Relations Board and which summarizes three important lessons of the research, click here.

About these ads

One Response to “The Political Situation of Judicial Activism”

  1. Steve said

    I do not know that you can define “activism” as a justice’s tendency to vote to overturn an agency decision. For example, if an agency’s actions exceed the agency’s authority or are undertaken without compliance with statutory procedural requirements, a decision to overturn the agency action would not, by most standards, be considered activism. In that case, a liberal who supported the agency’s original action might view the judicial action as a form of activism. I think the only way you can view the judicial decision to overturn an agency decision as activism is if you also assume that, on balance, agency actions themselves are neither liberal nor conservative.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
Follow

Get every new post delivered to your Inbox.

Join 848 other followers

%d bloggers like this: