Over at the Sex Crimes Blog, Corey Yung (John Marshall) discusses the preliminary results of a mostly sex crimes-free paper on judicial activism. He will be presenting the paper at Law and Society in Denver this Saturday.
For Yung, “Judges are ‘activist’ when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise.” For appellate judges, his operational measure of activism is tied to the standard of review on appeal. As the standard of review can be a hindrance to achieving a preferred outcome, activist judges should pay less attention to it. Yung therefore compares the reversal rates in cases (1) with and (2) without a deferential standard of review. The calculation for each judge is straightforward: Reversal Rate in Non-Deferential Cases minus Reversal Rate in Deferential Cases. The smaller the gap between the reversal rates in these two classes of cases, the more "activist" the judge.
Based on the (preliminary) data from 2008 for five circuits, the average reversal gap is 10.4%. Judges Calabresi and Posner have smaller reversal gaps at 3.7% and 4.3%, respectively. Judge Sotomayor comes in near the average at 11.7%. Judges Easterbrook and Wilkinson are at the more "restrained" end of the spectrum with reversal gaps of 22.1% and 35.2%, respectively.
For more, see Yung's post here.