Measuring Judicial Activism by Federal Appellate Judges
In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.
Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.
To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.
So, what can we learn from standards of review? I contend that by comparing a judge’s reversal rate in non-deferential cases with the reversal rate in deferential cases, we can effectively measure the concept of judicial activism. So, appellate judges are more “activist” when they reverse district court judgments under a deferential standard at a higher relative rate compared to reversals using a non-deferential standard. My exact measure (or activism “score”) for activism is reversal rate in non-deferential cases minus the reversal rate in deferential cases. This measure captures when a judge is not deferring to other constitutional actors when we would normally expect him or her to do so.
The measure has the advantage of not being based upon the substantive outcome of the case. A judge can use either a deferential or non-deferential standard and still find for either party. Since we might think that activist judges are not keen to make clear that their decisions are actually activist, looking at substantive outcomes can be tricky as judges try to mask an appearance of activism. Since standards of review are usually non-controversial (in that the parties rarely dispute over which standard applies) formal rules, we might think that there will be less ability for judges to mask their activism. Ultimately, the failure to defer by a judge over time indicates a relative propensity for activism even if we cannot say for certain that any individual decision is activist. As will be clear in my next post, judges vary quite a bit in their deference under standards of review.
My dataset thus far includes all 2008 cases that used standard of review related words (except habeas and immigration cases) for five circuits: the 2nd, 3rd, 4th, 7th, and 8th. Eventually the dataset will include all eleven numbered circuits as well as the D.C. Circuit. The dataset covers 3,873 cases and 11,583 judicial votes. Each vote is coded for, among other things, standard of review, type of vote, and type of case. I have also integrated biographical information for each judge to determine if background or demographic characteristics are related to judicial activism.
In my next post, I will detail some of my results based upon my preliminary data.