Study Labels Thomas Most Partisan Justice, Scalia Most Activist

U.S. Supreme Court

Study Labels Thomas Most Partisan Justice, Scalia Most Activist

Posted Jul 31, 2008, 10:34 am CDT
By Debra Cassens Weiss

A law professor’s study of court decisions concludes that Justice Clarence Thomas is the U.S. Supreme Court’s most partisan justice, and Justice Antonin Scalia is the most activist.

At the opposite end of the spectrum, Justice Anthony M. Kennedy is most neutral, and Justice Stephen G. Breyer shows the most judicial restraint, law professor Cass Sunstein writes in the Washington Independent.

Sunstein, a University of Chicago law professor joining Harvard this fall, scoured and catalogued 20,000 federal court decisions with several colleagues. They analyzed whether court decisions reviewing agency decisions were liberal or conservative and how often courts struck down agency decisions.

The study authors labeled an agency decision as conservative if it was challenged by a public-interest group, like the Sierra Club. If it was challenged by a corporation, like General Motors, it was counted as liberal.

Decisions by Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. were not included in the study since they are relatively new to the court.

The study shows that partisan voting is also pervasive on the lower federal courts. Republican judicial appointees are far more likely to uphold conservative agency decisions than Democratic appointees; and Democratic appointees are more likely to uphold liberal agency decisions.

The results lead Sunstein to conclude that “widespread conservative complaints about ‘liberal judicial activism’ should be taken with many grains of salt.”

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Posted by Peter Tillers - 2 months, 1 week, 5 days, 7 hours, 58 minutes ago

Prof. Cass Sunstein is a very intelligent fellow—but his study should be taken with a large grain of salt.

When he goes through the confirmation process after his forthcoming nomination (by Pres. Obama) to the Supreme Court takes place, Prof. Sunstein will be able to say, I think he thinks, that he would be part of the non-activist non-partisan wing of the Court.

I think I would favor Prof. Sunstein’s confirmation—but not because I think he would be a non-partisan or a non-activist member of the Court. I think Prof. Sunstein would be partisan and activist in his own way.

Debates about the alleged activism and partisanship of this or that Justice are tiresome and unproductive. Let’s avoid these gross labels and let’s focus on how nominees and Justices view the Constitution and Constitutional interpretation.
Posted by Nino Baldino - 2 months, 1 week, 5 days, 3 hours, 1 minute ago

and what of Ginsberg..this lovely lady is an official in the ACLU...hardly a ‘right wing’group or indifferent ....mmmm..and confirmed by the likes of McCain..
Posted by Ranger G - 2 months, 1 week, 4 days, 8 hours, 43 minutes ago

If this is an accurate statement of methodolgy, then its an asinine study. “Activism” has nothing to do with political ideology, it has to do with whether a judge interprets the law fairly within text and relevant context, or dances around interpretation to invoke things never seen before in the law--such as finding a state obligation to formally recognize committed relationships in California, or flat goofiness like emanating penumbras to justify a “right” to abortion. This little bit of work may serve the Prof’s agenda, but it does a serious disservice to both science and common sense.
Posted by J.D. - 2 months, 1 week, 11 hours, 8 minutes ago

Let’s see:

Stick to the constitution (Scalia), and you’re an “activist.”

Advocate use of foreign law in U.S cases to get the result you want (Breyer), and you’re showing “restraint.”

Ha, ha. Liberalism is a mental disorder.

He’s perfect for Harvard and Chicago.

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