originalism and moral skepticism

Mon Sep 4 04:17:25 PDT 2006

I have done the counting. In the period between 1994 and 2004 when the same nine justice served together, Justice Breyer voted to strike done federal statutes in 15 cases. This was the fewest of all of the justices sitting during this time. Justice Scalia did so in 31 cases, and Justice Thomas in 34 cases (the most). In the same time period, Justice Breyer voted to strike down state statutes in 44 cases (the third highest after Stevens and Souter). Scalia did so in 31 cases and Thomas did so in 30 cases. Rehnquist voted to invalidated the fewest state laws, with only 24 such votes.

When you combine the justices' votes to strike down state and federal laws, Breyer is second from last on the list: he cast only 59 total invalidation votes. Justice Kennedy cast the most (69) and Justice Rehnquist cast the fewest (49). Justices Scalia and Thomas come in in the middle (62 and 64, respectively). 

Information about the rest of the justices' votes, and additional information about the issue areas in which these votes were cast and the ideological direction they took, can be found in my paper, "Judicial Activism: An Empirical Examination of the Rehnquist Natural Court" (forthcoming in Constitutional Commentary). The paper is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=912509.

Lori Ringhand
Associate Professor of Law
University of Kentucky College of Law
Lexington, KY 40502
lring2 at uky.edu

SSRN: http://ssrn.com/author=332414 <http://ssrn.com/author=332414>  
Home Page: http://www.uky.edu/Law/faculty/ringhand.html

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Sun 9/3/2006 10:35 PM
To: Earl Maltz; forwarding for fcross; lsolum at law.uiuc.edu; MARK STEIN
Cc: mortimer.sellers at gmail.com; conlawprof at lists.ucla.edu
Subject: RE: originalism and moral skepticism

Does anyone have any doubt (though I haven't done the counting) that
Breyer is less likely than Scalia, Thomas, and Kennedy to strike down
the actions of Congress?  Just think of the "new federalism" decisions
for starters.  Re state governments, Breyer might indeed win:  one
thinks immediately of the religion decisions, where Breyer is more
likely to strike down state voucher plans and other forms of aid to
religious schools.

sandy

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Sunday, September 03, 2006 9:28 PM
To: forwarding for fcross; lsolum at law.uiuc.edu; MARK STEIN
Cc: mortimer.sellers at gmail.com; conlawprof at lists.ucla.edu
Subject: Re: originalism and moral skepticism

Breyer?  Restrained?  Is there data which demonstrates that Breyer is
less likely than Scalia, Thomas and Kennedy to vote to strike down the
actions of Congress or the state governments.

At 10:30 AM 9/3/2006 -0500, Frank Cross wrote:
>>  It seems quite obvious the original meaning originalism is
>> restrained as compared to some constitutional theories, e.g. as
>> compared to Dworkin's theory or to strong constitutional
instrumentalism.
>
>I'm immediately skeptical when a sentence is begun with "it seems quite

>obvious."  It is not so to me.  I think the issue requires a little
>closer scrutiny, and I've seen little suggesting that supports the
claim.
>It may be true, but I am struck that Breyer may be the best example of
>instrumentalism and he also may be the most restrained of the justices.
>
>
>>
>>On 8/24/06, MARK STEIN
>><<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
>>The "Mark" to whom Tim replies is Mark Graber, but let me just repeat
>>the old point that originalism is not restraint.  It is one thing to
>>decide moral questions through democratic processes, and quite another

>>to impose the moral views of the Founders-- views that on many issues
>>are almost universally rejected today.
>>
>>Mark
>>
>>Mortimer Sellers <<mailto:msellers at ubalt.edu>msellers at ubalt.edu>
wrote:
>>I would like to come out as one of those people (dismissed by Mark as
>>"mistaken"), who believes that judges and citizens should generally
>>defer to the liberal protections and democratic processes embedded in
>>the U.S. Constitution.
>>This gets to the heart of constitutionalism. I think that it is decent

>>humility, not moral skepticism, which should encourage us to respect
>>well-designed constitutional procedures of democratic decision-making.
>>On particular moral questions, I may think that I know the answer, but

>>be mistaken. This does mean that there is no right answer, but that I
>>should recognize the possibility of my own error and sometimes defer
>>to good procedures, even when I have not been completely convinced of
>>the result that they yield.
>>Tim Sellers
>>
>>
>>--
>>Lawrence Solum
>>John E. Cribbet Professor of Law
>>University of Illinois College of Law
>>504 East Pennsylvania Avenue
>>Champaign, IL  61820-6909
>>217.244.3960
>><mailto:lsolum at gmail.com>lsolum at gmail.com
>>http://lsolum.typepad.com/legaltheory/ (blog)
>><http://home.law.uiuc.edu/~lsolum/>http://home.law.uiuc.edu/~lsolum/
>>(homepage at the University of Illinois)
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>>unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as
>>private.  Anyone can subscribe to the list and read messages that are
>>posted; people can read the Web archives; and list members can
>>(rightly or wrongly) forward the messages to others.
>
>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private.  Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly

>or
>wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu To subscribe,
unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.