Mirror, Mirror on the Wall, Who is the Most Activist of Them All?
posted by Corey Yung
In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.
So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:
As noted in the chart, my average activism score is -10.40%. That means Judge Sotomayor, who is highlighted in green, is less activist than the average judge in my dataset. I have highlighted in red the other judges that were rumored to be on President Obama’s shortlist. As I have noted elsewhere, Judge Sotomayor is slightly more activist than average in criminal cases, perhaps owing to her extensive experience in that area of law. Although one of the primary attacks on Judge Sotomayor is her alleged judicial activism, I do not think such an attack is supported by her record in 2008. I would be interested in seeing any data which actually supports a charge of activism. Simply cherry picking a few cases over the long period she has been on the appellate judge or relying on sentences out of public statements gives almost no insight into Judge Sotomayor’s overall judging philosophy and technique. Further, such selective review of cases and speeches offers no information about how similarly situated judges have performed during the same period.
Outside of Judge Sotomayor, I wanted to highlight a couple other judges in my chart: Judges Posner, Easterbrook, and Wilkinson. Those three are notable because they have taken the unusual step of writing generally about judging and specifically about activism. Based upon my reading of their writings, I think all three judges perform as you might expect. I think a fair, but crude, assessment of Judge Posner’s perspective on how a judge should decide a case is: “if it’s broke, fix it.” We would expect that Judge Posner would not be particularly deferential to the opinions of others if he thinks that they are in error. Thus, we might expect the data to show, relatively, that Judge Posner is more activist. Judge Easterbrook has openly lamented the activism of judges. We might then expect him to be substantially less activist than an average judge. Judge Wilkinson has been perhaps the most aggressive judge in attacking judicial activism. He even vocally targeted the United States Supreme Court decision in Heller even though that opinion probably fits with his policy ideology. Judge Wilkinson, then, might be expected to be among the least activist judges. That all three judges fit with some of the information we have about each of them might indicate that the data I have collected is a valid indicator of an individual judge’s activism.
I should note that activism by judges is not inherently a negative quality. On the other extreme, a judge who is too deferential to other constitutional actors might not be adequately fulfilling his or her responsibilities under the Constitution. Such a judge may simply be acting as a rubber stamp by failing to exercise proper judgment. Further, since my measure is only relative between judges, I do not attempt to describe what the “ideal” amount of activism by a judge is. So, nothing here should be taken as a disparagement of a particular judge. My hope is simply to add more data to understanding judges and judicial behavior.
As I mentioned previously, this is an ongoing project so I welcome comments and suggestions. As this will be my last post, I wanted to thank Dan, Dave, and the rest of Concurring Opinions for having me here.