Studying Judicial Activism by Federal Appellate Judges

In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.

The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.

The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era.  The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.

Studying federal appellate courts is more informative because the courts are restrained and are responsible for defining much more of federal law and other issues in federal courts. As the Supreme Court’s docket as shrunk, the Courts of Appeals have increased in importance. Further, as is the case with Sotomayor, studying appellate judges can give you more information about a Justice before they join the Court rather than waiting until someone has life tenure and is unreviewable. Because federal appellate courts are limited by the decisions of other panels, en banc review, and U.S. Supreme Court law and review, it is much easier to establish a baseline against which to measure activism.

The emphasis on inter-branch relations in activism is also problematic. Again, there are very small sample sizes since only rarely do courts review the constitutionality of legislation or other branch actions. There is also a problem in deciding which acts of judicial review are “really” activist. Not all Court actions striking down legislation are created equal. The focus on inter-branch review is particularly problematic for federal appellate courts since those cases are an incredibly small percentage of the overall docket.

As a result, to better appreciate and understand the concept of judicial activism, I believe it is helpful to move beyond the Supreme Court and to consider actions by the courts other review of other branches. 

In my next post, I’ll describe my measure and my existing dataset.

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