In Search of Judicial Activism: Dangers in Quantifying the Qualitative

Abstract

This article explores the meaning of judicial activism, critiques recent empirical efforts to resolve the debate quantitatively, and provides a new framework for conceptualizing purported activist behaviors. This framework demonstrates the inherent complexity and subjectivity of the phrase judicial activism. The ultimate goal of my article is to focus attention on the qualitative issue - the appropriate role of the judiciary.

Legal empirical scholarship is increasing in number and force. Recent efforts to quantify judicial activism, however, ignore the complexity of identifying what constitutes inappropriate uses of judicial power. Empirical attempts to pinpoint the true activists create risks of sweeping misinterpretations and improper labeling of judges. For example, Professor Lori Ringhand offers empirical data to warrant that the "conservative" justices of the Rehnquist Court engaged in "activism" by invalidating legislation and overturning precedent. My article offers a healthy skepticism of such empirical claims and then a fresh conceptualization for helping us through the morass of the judicial activism debate.

Judicial activism is a creature of loaded qualitative meanings and thus resistant, in many respects, to quantitative analysis and conclusions. Despite the appeal of legal empirical scholarship in this nebulous arena, failure to capture the full meaning of the term skews the core debate regarding judicial power and restraint. We cannot cloak ourselves in the security of empirical certainty. Instead, we need deeper dialogue on the complexity of judicial decision-making and the judiciary's role. It is imperative that we not lose sight of the heart of the matter - the proper role of the judge in our constitutional democracy.

Keywords: judicial activism, federal courts, judiciary, appropriate role, constitutional democracy, separation of powers, judicial philosophy, qualitative, quantitative, empirical studies, judicial restraint

JEL Classification: K1, K4