Judicial Conservatism, Liberalism, Activism, Restraint, and Everything in Between
posted by Corey Yung
While this is my last planned post on the subject, I continue to welcome comments and suggestions about my attempt to measure judicial ideology. My goal in both my posts here and overall project has been to push forward the effort to better understand the process of judging and the outcomes of judicial decision-making. Judge Richard Posner’s detailed and extremely valuable account of judging in How Judges Think offers one of the most interesting looks into judicial decision-making. However, there has been limited empirical research into the various models of judging like those described by Judge Posner as applied in the real world. Frank Cross has been one of the few that has rigorously tested whether the major models of judging describe judicial behavior for judges at the federal appellate level. There is still an immense amount of work to be done in this area.
Thus far, I have created measures of judicial activism and ideology. I’m currently working on projects to assess the traits of judicial partisanship and independence. My goal is not to just create a typology of judges based upon those measures, but to really have an objective grasp of the differing ways judges in our federal system are reviewing cases. Since I have results based upon my first two measures, I thought it would be worthwhile to consider the Activism and Ideology Scores of a handful of judges.
| Judge | Circuit | Activism Score (Mean = 56.0) | Ideology Score (Midpoint = 0) |
| Deborah L. Cook | 6 | 74.0 | 77.2 |
| Diarmuid F. O’Scannlain | 9 | 57.1 | 59.7 |
| Frank H. Easterbrook | 7 | 33.6 | 55.8 |
| Edith H. Jones | 5 | 68.6 | 22.0 |
| Richard A. Posner | 7 | 68.3 | -9.9 |
| Jerome A. Holmes | 10 | 89.6 | -9.7 |
| Ann C. Williams | 7 | 64.1 | -31.5 |
| Diane P. Wood | 7 | 44.7 | -37.2 |
| Sonia Sotomayor | 2 | 51.8 | -40.1 |
| Gilbert S. Merritt, Jr. | 6 | 25.2 | -52.4 |
| Kim M. Wardlaw | 9 | 92.7 | -63.3 |
The judges above range from very conservative to very liberal. Combining their Ideology Scores with their Activism Scores, however, illustrates important differences. For example, Judges Cook, O’Scannlain, and Easterbrook are all very conservative. Yet, of the three, only Judge Cook fits the label “conservative activist.” Judge Easterbrook appears to be a strong conservative, but one who is ultimately restrained in judgment. On the other end of the ideological spectrum, Judges Wardlaw and possibly Williams might be considered “liberal activists.” Judge Easterbrook’s analogues on the liberal end are Judges Wood and Merritt as ”restrained liberals.” The two measures help to differentiate judges that might otherwise be treated as the same.
Judges Posner and Holmes fit into a category that has rarely, if ever, been talked about: the activist moderate. That might seem like a bit of an oxymoron, but I think the label is quite helpful. Judge Posner has embraced a judicial pragmatism that often finds him at odds with members of both parties. That makes him an ideological moderate. However, his pragmatism might also lead him to aggressively correct the “mistakes” of other constitutional actors. Thus, he is an activist. I know little about Judge Holmes, but it seems like his scores place him in a similar style as Judge Posner. I’m hopeful with the addition of more dimensions of measurement, even more distinctions and similarities might be identified.
June 24, 2010 at 9:53 am
Posted in: Empirical Analysis of Law, Legal Theory
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Responses (1)
Frank - June 24, 2010 at 10:09 am
Thank you for this series. I recently went to an ELS workshop, and I was a bit surprised by the emphasis there on using extant quantitative data, rather than developing one’s own. By contrast, Ian Shapiro has complained that, in some “method-driven work . . . the construction of the problem is contaminated by the methods available to the researcher.”
at http://press.princeton.edu/chapters/i8083.html
Shapiro also states that when “esoteric forms of redescription are involved, they must elucidate the links to more familiar understandings of politics.” So I guess my question would be: is there a point at which a judge’s activism or ideology score would make them unfit to serve, or would cause us to question the legitimacy of decisions they contributed to?
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