Mirror, Mirror on the Wall, Who is the Most Activist of Them All?

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.

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6 Responses

  1. Bobo Linq says:

    Very nice work. Just one comment:

    The caption of your chart is a little confusing. In the text, you say “my average activism score is -10.40%.” And the scores are all negative percentages. But your caption says “Activism Differential (10.40% average).” The positive percentage in the caption is confusing. I think this should read “Activism Differential (-10.40% average.)”


  2. A.J. Sutter says:

    That’s not the only confusing thing. Differential compared to what? What does zero mean? Is a positive score possible?

    Although I assume the way the scale is defined may make mathematical sense, it is not at all an intuitive communication tool. The direction of absolute infinite increase is in the direction of less activism, though obviously there must be a zero point to activism. Similarly, one might expect that activism is relatively unbounded in theory (e.g., a judge might be an anarchist), yet the more activist scores seem to converge to zero. Probably you can fix this by a simple mathematical manipulation of the definition of your score, such as adding an absolute number to all scores, inverting a proportion, etc. It would be good to have a bigger absolute value indicate more activism.

  3. Corey Yung says:

    Hi Bobo,

    Oops. Thanks for catching that. I have corrected the chart. I was using a positive value scale until I presented at Law and Society and most people agreed it made more sense for the scale to be negative. I forgot to change my average number to a negative number.

    Hi A.J.,

    The differential was described in a previous post in my series. It is the differential between reversal rates in cases using a deferential and non-deferential standard of review. You are right that it is not the best way to communicate the data. Eventually, I will scale all of the scores (probably between 0 and 100). However, until I have data from all of the circuits, I cannot construct a complete scale since I don’t know the highest and lowest score yet. Since this is just my preliminary data, I decided to use my raw scores.


  4. A.J. Sutter says:

    Since the data may change in time over the years, maybe the scoring according to highest and lowest would need to be constantly tweaked? A simple manipulation like

    new score = -1/(raw score)

    would achieve the communicative goal of aligning higher activism with bigger absolute (and positive) magnitude, and wouldn’t need updating even if by some quirk we got some very activist judges someday.

    Given that your current scores range from -0.0365 to -0.3516, the new scores would range from 2.844 (for Wilkinson) to 27.397 (for Posner) (NB: no percent signs).