The Real Judicial Activists

In discussions of "judicial activism," almost everyone focuses on how often Supreme Court justices vote to strike down acts of Congress. These discussions neglect a question that is, in terms of the Court's actual workload, much more important: How often do justices vote to strike down acts of the executive branch?

We attempted to answer that question by compiling a large sample of votes (more than 500) from 1989 through 2005. We were startled by our results.

In a nutshell, the more liberal members of the Court were the most likely to vote to uphold the decisions of the executive branch. The most conservative members of the Court were the least likely to vote to uphold those decisions.

Justice Stephen Breyer voted in favor of the executive 82 percent of the time -- the highest pro-executive voting rate on the Court. Justices David Souter, Ruth Bader Ginsburg, and John Paul Stevens were next, with an average voting rate in favor of the executive of 75 percent.

Justice Antonin Scalia voted the least often for the executive (52 percent), and Justice Clarence Thomas was close to him (54 percent). Former Chief Justice William Rehnquist showed a somewhat higher pro-executive rate (64 percent). Here as elsewhere, Justices Sandra Day O'Connor and Anthony Kennedy were exactly in the middle (around 67 percent).

In their willingness to strike down acts of the executive branch, the conservative justices appear to be the most activist, and the liberal justices to be the most modest.

Why are the justices' votes in favor of the executive almost perfectly correlated with popular impressions of the ideological leanings of the justices? To answer this, we separated the justices' votes by presidential administration. Our analysis was simplified by the fact that about half the votes in our sample were made during the Clinton presidency, while the other half were made during one or another Bush presidency. And indeed, we found that the most conservative justices were much more likely to vote in favor of the executive branch under Republican than Democratic rule. Taken as a whole, Rehnquist, Scalia, and Thomas voted in favor of the executive 47 percent of the time under a Democratic president -- and 65 percent under a Republican.

But Breyer, Souter, Stevens, and Ginsburg showed no statistically significant decrease in their pro-executive votes under Republican presidents. In fact the four liberal justices voted in favor of the executive under Republican rule at a 73 percent rate -- higher than that of the conservative justices.

To understand these figures, we observed that the Clinton administration sometimes made conservative decisions, challenged in the Supreme Court by public interest groups, and both Bush administrations sometimes made liberal decisions, challenged in the Supreme Court by industry. What happens when we analyze executive decisions by whether they are liberal or conservative?

With that analysis, some of the puzzles disappear. Rehnquist, Scalia, and Thomas voted in favor of liberal executive decisions only 46 percent of the time and in favor of conservative decisions 76 percent of the time. Stevens, Souter, Breyer, and Ginsburg voted in favor of liberal decisions 85 percent of the time and in favor of conservative decisions 58 percent of the time. Apparently the votes of Supreme Court justices, in cases testing the legality of executive branch decisions, are significantly affected by whether those decisions are liberal or conservative.

Kennedy and O'Connor provide a useful reality check here: Their pro-executive voting rates turn out to be the same, regardless of how we characterized the executive's decisions.

Our evidence does not suggest that judicial decisions are based on politics rather than law. The conservative justices vote to uphold liberal decisions nearly half the time. Liberal justices vote to uphold conservative decisions over half the time.

In any case, the Court restricts itself to hard cases, and so it should not be shocking to see a degree of political voting. In lower court cases in the areas of environmental and labor law, we find an essentially identical rate of pro-executive voting across Democratic and Republican appointees.

But our simplest lessons remain. The conservative members of the Court have been the most likely to vote to strike down executive branch decisions, and the liberal members of the Court have been the least likely to do so. The voting patterns of the justices are significantly affected by whether the executive's decision is liberal or conservative. But even here, there is a kicker: Liberal justices vote to uphold conservative decisions more often than conservative justices vote to uphold liberal decisions. tap

Thomas J. Miles and Cass R. Sunstein teach at the University of Chicago Law School.

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