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11/14/2012

Lee Epstein & Andrew Martin on the Roberts Court and Judicial Activism
Michael Ramsey

At SCOTUSBlog, Lee Epstein and Andrew Martin: Activism and the Roberts Court.  From the introduction:

Is the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional and confine the analysis to the 1969–2009 Terms, the answer … is no. The Justices of the Roberts Court, like their immediate predecessors, are neither uniform activists nor committed restraintists. [Ed.: wow, is that a word?]  Rather, the Justices’ votes to strike (and uphold) statutes seem to reflect their political preferences toward the policy content of the law, and not an underlying preference for restraint (or activism).

And further along:

With the notable exception of Kennedy, the Justices of the Roberts Court (with sufficient votes for analysis) fit this basic pattern. As Table 1 shows, the four conservatives (Thomas, Scalia, Alito, and Roberts) are all highly unlikely to invalidate conservative laws. The range in the predicted probabilities of invalidating is narrow, from 0.02 for Alito for 0.27 for Scalia. The four most liberal Justices, on the other hand, are significantly more likely to invalidate conservative (relative to liberal) laws. The model predicts that Ginsburg votes to strike in seven out of every ten cases involving a conservative law but only in about two out of ten involving a liberal law. Even for Breyer, the most likely to uphold right-leaning legislation, the ideological direction of the law is a statistically significant predictor of his vote. More generally, looking down the third column of the table, from the most conservative to the most liberal Justice, we see that the predicted probability of invalidating a liberal law declines in a near monotonic fashion.

And with this observation:

What should we make of Justice Kennedy? Judged on the basis of whether he was in the majority when the Court struck down legislative action, Kennedy is the most aggressive of the Roberts Court Justices.  When the Court invalidated a federal, state, or local law between the 2005–2009 Terms, Kennedy was in the majority 94% of the time. Only Roberts (at 72%) came close. But, unlike the other Roberts Court Justices, there is no underlying ideological pattern in Kennedy’s votes; as a statistical matter, he is equally as likely to sustain (or invalidate) conservative as liberal laws.

Bonus: graphs and statistics.