originalism and moral skepticism

Frank Cross crossf at mail.utexas.edu
Mon Sep 4 08:41:19 PDT 2006


Building on Lori Ringhand's research, I've just completed an article with 
Stefanie Lindquist in which we attempted to measure activism, not just by 
statutes struck down but with qualifiers.  For example, we considered the 
ideological direction of the decision, on the theory that less activist 
judges would show less ideological directionality in their votes.  We also 
considered the size of the voting coalition, on the theory that votes of 
unconstitutionality with a large coalition were less activist.  We used 
data for the Burger and Rehnquist Courts.

Breyer was the least activist on the current Court by this measure.

Ilya's argument is an intriguing one.  Posner has suggested that open 
consequentialism will be less ideological and activist than apparently 
neutral theories, like originalism.  I find this very plausible.  If 
justices can pour their preferences into legalist originalist bottles, they 
may feel more empowered to activist decisions.  Judges who are open about 
considering policy may be more restrained.


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