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Legal Commentary

: Balkinization

Lindquist and Cross on Judicial Activism

By Jack M. Balkin

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I?m recommending Measuring Judicial Activism, a book just published by Oxford Press by Stefanie Lindquist and Frank Cross. Both authors are well known for their contributions to empirical legal studies. In this excellent (and short) book they take on one of the most hotly debated topics in the field of constitutional studies. They analyze the individual activism of all the justices who served on the Warren, Burger, and Rehnquist Courts along five dimensions: judicial review of federal statutes, state and local laws, executive branch actions, justiciability and overruling Supreme Court precedents. So who are the most activist justices? You?ll have to buy the book to relieve the suspense, but I?ll give you a few examples. With respect to overruling Supreme Court precedent, the most activist justices turn out to be Scalia and Thomas, well in front of presumed activist stalwarts such as Douglas and Warren. Lindquist and Cross also distinguish between institutional activism (willingness to grant access to the federal courts) and ideological activism (a commitment to a particular policy outcome). When they cumulate the scores of judicial activism across all dimensions, the top activist justices turn out to be Douglas, Black, and Warren, with Brennan and Marshall close behind. Justices Burger and Frankfurter rank last. The book is consistently interesting and well worth reading.

Full post as published by Balkinization on May 19, 2009 (boomark / email).