Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Court of Appeals

Corey Rayburn Yung who teaches criminal law and procedure at the John Marshall Law School has posted a draft paper (Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Court of Appeals) on SSRN. Professor Yung’s scholarship is primarily focused on sex crimes and judicial decision-making. Here is an Abstract of the paper:

July 15, 2009
Abstract: Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Court of Appeals
Corey Rayburn Yung
The John Marshall Law School
Existing empirical scholarship about judicial activism has almost exclusively focused on 1) the United States Supreme Court; and 2) actions by the judiciary which invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on inter-branch and inter-governmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts.

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures a judge’s privileging of his or her judgment above others. Using a newly created dataset which includes 2008 cases which applied a standard of review from the eleven numbered circuits and the D.C. Circuit, the study is able to assess the activism of individual federal appellate judges. The article finds that there is no statistically significant correlation between activism of judges and the political party of the appointing President, the particular President who appointed the judge, and whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual Courts of Appeals vary substantially in their levels of judicial activism.

This draft analyzes data from nine Circuits including 6,626 cases and 19,869 judicial votes.

Keywords: judicial activism, empirical, courts of appeals, federal appellate courts, judicial restraint