Is Sotomayor an Activist? Not by my Measure

This is a bit off topic, but I figure it will still be of interest because who doesn't care about a Supreme Court nominee?

For many months, I have been working on an empirical project that measures judicial activism of appellate court judges. Most studies on the subject of activism have focused on the Supreme Court and instances when judges engage in some form of inter-branch conflict. The focus on the highest court is understandable, but really doesn't tell us much about the judicial system as a whole. As Frank Cross has pointed out, because of the Court's small, self-selected docket, the overwhelming majority of "law" work at the federal level is being performed by the Courts of Appeals. When looking at those courts, the focus on inter-branch actions isn't very helpful. There are very few times when an appellate judge actually reviews a statute for constitutionality and even when the judge does so, he or she is constrained by other panel decisions, en banc review, and Supreme Court precedent and review. 

So, when talking about judicial activism of appellate court judges, we should look more broadly at defining activism. I offer a new definition that is less pejorative than normal and more readily applies to federal Courts of Appeals. Judges are “activist” when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise. The key to the definition is the concept of substituting judgment. Ultimately, activist judges subordinate the opinions of others in favor of their own. A couple other terms in my definition need elaboration. I refer to “constitutional actors” as the primary government actors in the U.S. Constitution: the courts, Congress, the executive, and state governments. So, if an appellate judge is reviewing an appeal of a suppression motion decision and substitutes his or her judgment in place of a police officer, that review has no “activist” implications. However, reviewing the judgment of the district court does. By the “formal model,” I think the best explanation was offered by Frank Cross as essentially what formalism would predict the outcome to be.

My definition affords room for different measures of the concept of judicial activism. Specifically, for federal appellate courts, we can look at review of district court decisions to determine activism. The major standards of review include de novo (non-deferential), clear error (deferential), arbitrary and capricious (deferential), and abuse of discretion (deferential). I contend that, appellate judges are more “activist” when they reverse district court judgments under a deferential standard at a higher relative rate compared to reversals using a non-deferential standard. In other words, failure to defer when a judge more often should (relative to when a judge should more often not) provides an effective way to capture and measure the concept of judicial activism. At the present time, my newly created dataset covers 2008 cases from five circuits: 2nd, 3rd, 4th, 7th, and 8th. I will eventually have data for the 11 numbered circuits as well as the D.C. Circuit. I currently have data for 11,583 judicial votes in 3,873 cases. 

As it turns out, then, I have accumulated quite a bit of data on Judge Sotomayor from her 2008 opinions. Below is how she ranks among other notable judges based upon my preliminary data (which is still subject to review and quality checking). The average of my data so far is 10.40. Notably, the lower the score, the more activist a judge is (because the score is the difference between the reversal rates in non-deferential and deferential cases). Here are some of the preliminary results (from most activist to least activist):

Guido Calabresi 3.65

Richard A. Posner 4.32

Dolores K. Sloviter 6.35

Ann Claire Williams 6.85

James B. Loken 9.06

Steven M. Colloton 9.54

Anthony J. Scirica 9.93

Sonia Sotomayor 11.71

Diane Pamela Wood 15.84

Frank Easterbrook 22.09

Diana Gribbon Motz 28.76

Harvie J. Wilkinson, III 35.16

By my measure, Judge Sotomayor is less activist than the average judge and does pretty well compared to many other notable appellate judges. I will be presenting my paper at Law and Society on Saturday at 4:30 on a panel titled, “Evidence before the Court: Amici Briefs, Expert Witnesses, and Judicial Fact Finding 3516” (the original panel my paper was on collapsed), so if you are interested, stop by and say, “hi.” Later today, I will try to post some stats about how Sotomayor performs in criminal cases.

Comments

[Steve]

Sounds like an interesting project. I'd like to hear more about how you operationalize "judicial activism" and what you mean by "when the formal model would predict otherwise." How was the model constructed?

As you know, the devil is always in the details.

Still sounds like a great database.

[Daniel]

Corey. It's an interesting academic exercise but I wonder what real world validity it has. For example, I wasn't at all surprised that Posner ranked near the top. After all, he clearly rejects a formalist view and argues for what could best be described as a neo-pragmatic approach. So to what extent is labeling a judge activist measuring something real as opposed to applying a politically correct term to philosophical differences. I don't think Posner himself would accept the idea he is an activist judge.

I guess that I have always seen the term "activist" as incantatory. Every judge is an activist judge, it's merely a difference in degree and direction.

[Zack]

Daniel - given that Judge Posner's views of the role of Common Law (especially Tort Law) vis a vis regulation is practically the very definition of judicial activism (at least before "judicial activism" became a code word for "any judicial opinion that the right (or more rarely the left) does not like.") it is hard to imagine that he would be very upset at being called a judicial activist.

Given that the founding fathers were working against a background of the English Common Law (as opposed to a code based written system) where it was understood that judges would make and define laws, it would seem that the founding fathers would find the current obsession with so called activist judges who make law rather than deferring to the political branches rather weird.