originalism and moral skepticism
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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