Who Are The Activist Justices?

There are lots of ways of evaluating whether a justices' decisions are activist. In Who are the bench's judicial activists? the Los Angeles Times describes a recent study that looks at cases about decisions of federal agencies from 1989-2005. They rated the decision of the agencies as liberal or conservative and then tallied which justices voted to uphold or overturn those decisions. The more overturning the more activist the justice. This approach also shows partisanship of the justices if they support conservative or liberal decisions more often.

The least activist justice is Breyer, upholding agency decisions 80% of the time. The most activist justice is Scalia who supports agencies only about 50% of the time (and they are supposed to get the benefit of a doubt in their decisions).

Kennedy the least partisan justice. "He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time." Souter is second.

The most partisan justice is Thomas. "When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing." Stevens is second with a 40% swing favoring liberal decisions.

"According to our tallies, the remaining justices [O'Conner, Ginsburg, and Rehnquist] were neither distinctively neutral nor distinctively partisan."

Here are some interesting comments on the study.