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Monday, August 14, 2006 

Activism and the Rehnquist Court

How Appealing linked to a paper by Lori A. Ringhand of the University of Kentucky - College of Law that discusses "judicial activism" and the Rehnquist Court. Here is the abstract...
This paper is an empirical analysis of the voting behavior of the individual Justices sitting on Rehnquist Natural Court. The paper, which focuses on the 11-year period between 1994 and 2005 when there were no personnel changes on the Court, examines individual judicial votes to invalidate federal and state laws, and to overturn existing precedent. I conclude that the Court's judicial conservatives were no less likely than their more liberal counterparts to invalidate legislation and overturn precedent, and to do so in ideological predicable ways.
I put judicial activism in quotes because Prof. Ringhand defines it as using the power of judicial review to invalidate a statute or law and voting to overturn established judicial precedent. She recognizes that many would disagree with that definition and says the following...
To those who believe any particular method of constitutional interpretation is constitutionally required and capable of yielding ascertainable and determinate constitutional answers, this way of measuring judicial activism will be at best unconvincing and at worst completely irrelevant. For such individuals, the appropriate definition of judicial activism is likely to be one in which the judge simply got it wrong - i.e., failed to adhere to the proper interpretive methodology, or failed to apply that methodology properly. For the rest of us, however - those who believe that Supreme Court justices are not historians, economists or moral philosophers, but judges, who as such must exercise judgment in uncertain and ambiguous cases - a quantifiable understanding of when and how judges use their power of judicial review will be a useful tool in the ongoing public debate about the appropriate role of the judiciary in our constitutional scheme.
I think this highlights the problem with the term "judicial activism", which I really don't care for at all. It has too many definitions to have any true meaning. The term can be twisted so much to fit any situation for the benefit of the speaker or writer.

Even if you disagree with the professor's definition, the paper is still full of interesting empirical data about the voting patterns of the Rehnquist era Justices.

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