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Which Justice Is Most "Activist"?

University of Chicago law professors Thomas J. Miles and Cass Sunstein summarize their effort to determine which Supreme Court justice is most "activist." Rather than look at constitutional cases, or challenges to statutes, they looked at challenges to federal agency actions, judging a justice to be "activist" based upon how often he or she votes to overturn an agency decision. Here is how they describe their approach:

Everyone looks at the high-profile constitutional cases, but to get a real sense of how justices approach their jobs, it's best to analyze the more routine, less-visible cases that are often more important to people's daily lives.

For this reason, we examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.

We used clear and simple tests to code the decisions of these agencies as either "liberal" or "conservative." For example, we counted an environmental regulation as "liberal" if it was challenged by industry as too aggressive, or as "conservative" if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him "neutral," in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him "partisan." If a justice regularly voted in favor of agencies, we deemed him "restrained," because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him "activist," in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Using this approach, they conclude the most "activist" member of the Court is Justice Scalia, and the most "restrained" is Justice Stephen Breyer. Turning to judicial ideology, they found Justice Thomas had the most "conservative" voting record (and was the most "partisan" or ideological), and Justice Stevens was the most "liberal." The least ideological, according to their methodology, was Justice Kennedy.

Miles and Sunstein note that their analysis says nothing about which hustices are "right" or "wrong." Rather, they were seeking to develop a neutral methodology for measuring one sort of judicial "activism" -- in this case rejecting the decisions of federal agencies. That said, without looking more carefully and their methodology and data set, in particular how they coded specific cases, it is difficult to evaluate their claims. (Time permitting, I'd love to dig into this, but the new baby and pending writing commitments may preclude it.) It is an interesting analysis nonetheless.

Carolina:
Defining "activism" by the level of deference given to the federal bureaucracy is a pretty bizarre metric.
10.24.2007 2:05pm
K Parker (mail):
I see I'm not alone in objecting to their idiosyncratic definition of "activist" judging.

Still, it will be interesting to see if their analysis makes sense in terms of the details (whatever we might have preferred them to have called their categories.)
10.24.2007 2:07pm
Bpbatista (mail):
The metric used in this study is absolutely worthless. Activism as generally understood means replacing the correct ruling that is required by the text of the Constitution with a ruling that satisfies a judge's own policy preferences. Dred Scott and Roe v. Wade (which even most liberal admit is not based upon anything actually in the Constitution) are clear examples of judicial activism. Overruling an agency decision is not "activisim" if that is what the Constitution and/or law requires.
10.24.2007 2:16pm
frankcross (mail):
Well, it is one metric of activism, often overlooked. And it is certainly fair to Justice Scalia, a professed advocate of deference to the Executive.

This gets to reality, as activism reflects both an innate willingness to review and reverse the actions of other branches (not necessarily so bad) and a tendency to reverse other branches on ideological grounds (somewhat worse). The two need to be distinguished.
10.24.2007 2:16pm
NaG (mail):
The problem is that the Miles/Sunstein analysis is, by their own description, completely unmoored from the Constitution. The whole point of the "activist" epithet was the perception that some justices were basing their opinions on personal political/policy grounds rather than the text of the Constitution. Nothing they wrote sheds any light on that critique at all. In fact, it really appears as though Miles/Sunstein are trying to change the terms of the debate so that when a Federalist Society member complains about an "activist" judge, it may be retorted that Justice Scalia, by one measure, is "activist" too.
10.24.2007 2:17pm
Kazinski:
I'd like to see some sort of metric about how "activist" the federal agencies are. Ever since federal agencies started telling people they couldn't brew corn likker on their own property things have been getting out of hand. And the court has been going along just about the whole way.
10.24.2007 2:19pm
Steve:
Activism as generally understood means replacing the correct ruling that is required by the text of the Constitution with a ruling that satisfies a judge's own policy preferences.

Right. In other words, "activism" means a decision I believe is incorrect, and any attempt to attach an actual meaning to it is impermissible.
10.24.2007 2:21pm
Richard S (mail):
Steve,

Do you mean to say that all interpretations of the constitution are equally valid? That is the necessary logical implication of your comment.
10.24.2007 2:27pm
Scott Scheule (mail):
Right. In other words, "activism" means a decision I believe is incorrect, and any attempt to attach an actual meaning to it is impermissible.

That's not what NaG is saying—unless you believe Constitution is indeterminate.
10.24.2007 2:28pm
JonC:
Ed Whelan and Patterico have both made incisive critiques of the Sunstein/Miles study.
10.24.2007 2:29pm
Paul Allen:
This is a politicized issue, and correspondingly they selected a weaselly definition intended to undercut one-side of the debate.

I'd argue that "activist" means decisions contrary to custom and tradition--at least this is the sense in which the word is commonly used.

I leave it as an exercise to reader to determine whether Thomas for instance is "activist" under this definition, but let me put on the table a point for discussion: Thomas is the most non-ideological justice.
10.24.2007 2:30pm
PatHMV (mail) (www):
Regardless of how you feel about the merits, the fact is that conservatives who complain about judicial activism use a completely different definition of the word. Perhaps it's not the best word for what they condemn, but it is the word that has come into currency for judicial decisions which are made based on the judge's personal policy preferences rather than the actual text of the Constitution and relevant statutes. To use the same term to mean something else does nothing but confuse everybody and foment yet more talking past each other. I have no idea of the authors' intent, but they have, in fact, erected an extremely large straw man, or at least aided and abetted those who do.
10.24.2007 2:33pm
FC:
GIGO.
10.24.2007 2:34pm
Thales (mail) (www):
"Activism as generally understood means replacing the correct ruling that is required by the text of the Constitution with a ruling that satisfies a judge's own policy preferences. Dred Scott and Roe v. Wade (which even most liberal admit is not based upon anything actually in the Constitution) are clear examples of judicial activism. Overruling an agency decision is not "activisim" if that is what the Constitution and/or law requires."

This is the most politically loaded public meaning of "judicial activism" out there--but used in this way it functions only as a term of abuse, even assuming each case admits of "the correct" ruling. But "activism" understood as the opposite of judicial "restraint" is actually a quite meaningful term--it means that in cases of doubt or discretion, judges defer to the more political (in the sense of democratically accountable and supplantable) branches of government, including the bureaucracy.

As a side note, the constitutional basis of Roe is of course debated, regardless of agreement with the result. "Most liberals" probably have differing views about where the case might be rooted--the Ninth Amendment, the privileges or immunities, due process or equal protection clauses, the Thirteenth Amendment (in the sense of forced pregnancy being a form of involuntary servitude), are some possibilities. Visceral disagreement with the result doesn't mean there is no plausible basis for an unenumerated constitutional right to abortion.
10.24.2007 2:36pm
APF:
Considering that the vast majority of Federal agency action is of questionable constitutional legality, why is it activist to overturn said questionable acts?

Sounds like bias in the methodology to me.
10.24.2007 2:44pm
theobromophile (www):
Given that administrative agencies are of questionable constitutionality, it is doubly strange to analyse rulings regarding them to determine a level of "judicial activism." They involve a delegation of powers far beyond the scope of the Framer's intent, separation of powers issues, non-Art. III adjudication issues, and (let us not forget) the issue that administrative agencies are not democratically accountable.

The study assumes that liberal and conservative decisions are equally valid, or at least equally influenced by the questionable constitutionality of administrative agencies. It could well be that "conservative" admin. agency decisions are more in line with the Constitution; as such, a non-activist judge would uphold those more frequently.
10.24.2007 2:46pm
TerrencePhilip:
Frank Rich is jumping for joy; tune in for his next op-ed.
10.24.2007 2:47pm
Chris Bell (mail):

Activism as generally understood means replacing the correct ruling that is required by the text of the Constitution with a ruling that satisfies a judge's own policy preferences. Dred Scott and Roe v. Wade (which even most liberal admit is not based upon anything actually in the Constitution) are clear examples of judicial activism. Overruling an agency decision is not "activisim" if that is what the Constitution and/or law requires.

What? I don't recognize that as the definition of "activism". Your definition of 'decisions that contradict the constitution' is just "being wrong".

I would define activism as:

Judicial Activism - When a judge rules a certain way because she believes that the outcome is better as a policy matter. In other words, the judge places her opinion above the opinions of the framers or Congress. Activism is often summed up by the phrase "legislating from the bench."

That is a bit fair to call Scalia "activist" because he overrules agencies, because he argues that he overrules them in favor of the text set out by Congress.

On the other hand, the agency clearly considered the congressional text to be ambiguous. So Scalia is activist in the sense that he thinks he understand language better than the agency charged with enforcing it on a 24/7 basis.
10.24.2007 2:53pm
Adam J:
Paul- It's nice that you put "Thomas is the most non-ideological justice" on the table, but Cass and Sunstein already have empirical evidence that suggests otherwise on the table- maybe we should discuss that.

PatHMV- activism is a loose and fast phrase- sometimes people use it basically as the antonym of "textualism" (some might call that a weasily definition) but I've also often seen it used it when judges make a decision that they disagree with the legislature or the executive interpretations- the way Miles and Sunstein are using it now. Also, exactly where is the straw man you're talking about?
10.24.2007 2:54pm
AF:
Considering that the vast majority of Federal agency action is of questionable constitutional legality, why is it activist to overturn said questionable acts?

This comment seems to assume that an "activist" decision is necessarily wrong. And if you want to define it that way, I suppose it is. But then you might as well use the word "wrong" or "liberal and wrong" or just "liberal." If you want to take "activism" seriously as an analytical category, that necessarily means giving it a definition that is independent of "wrong" or "liberal."

PatHMV's suggestion -- "judicial decisions which are made based on the judge's personal policy preferences rather than the actual text of the Constitution and relevant statutes" -- seems too close to the merits to be all that helpful. But I question whether conservatives are even willing to apply that definition neutrally -- it would seem to apply to the Supreme Court's Eleventh Amendment jurisprudence, for example, which is admittedly not based on the text of the Eleventh Amendment.
10.24.2007 3:01pm
Adam J:
Thales- good post, I think that's the most accurate attempted definition of activism posted. I have to admit I laughed when I read Bpbatista's- trying to define activism on something as subjective as being "wrong".
10.24.2007 3:08pm
DCraig:
"Defining "activism" by the level of deference given to the federal bureaucracy is a pretty bizarre metric."

Yeah, because the idea that supreme court justices are supposed to exercise judicial review as a check on the executive branch is just plain weird! Everyone knows activism means acting ruling for liberal decisions and not this crazy notion of actively engaging in fundamental judicial activities.
10.24.2007 3:08pm
Adam J:
Oops, not Thales- I mean Chris Bell- good post
10.24.2007 3:11pm
Constitutional Crisis (mail):
"My definition of judicial activism," [Judge Roberts] told the Senate, "is when the court departs from applying the rule of law and undertakes legislative or executive decisions." (Investors Business Daily, 7/21/05, A14).

It is well-established that the rule of law generally requires deference to agency interpretations. Thus, when the Court reverses an agency interpretation, it is engaged in activism. When that activism is motivated by an ideological bias, one might find it to be more pernicious than simple disagreement with the agency's interpretation.

The notion here is that by looking at how the Justices treat the legislative and executive branches, the positions of which are manifest in agency action, one can determine whether that Justice is "activist," that is, guilty of what conservatives have been crying about for years -- a willingness to write their own views into law, rather than apply the law as it stands.

And I note that this is only tangentally related to the originalism/rationalist debate. One can be an activist originalist (see Scalia) or an activist rationalist (see Brennan). On the contrary, one can be a restrained rationalist (Breyer) or a restrained originalist (hmmm...I'm in need of an example...anyone, anyone? Bueller?)
10.24.2007 3:11pm
PLR:
Very interesting. I'm not entirely clear what it means, just as I'm not quite sure what an I.Q. test is really measuring, but the results are worth considering.

It's also noteworthy that Kennedy shows up in the middle. In constitutional cases it is generally understood that briefs and arguments are pitched directly to Kennedy (and in the case of the Sixth Amendment, Scalia), since the rest of the justices are known quantities. This report's findings suggest that he should be the target audience in non-constitutional cases also.
10.24.2007 3:11pm
Constitutional Crisis (mail):
Obviously, I've oversimplified it a bit, but the thesis is not crazy.
10.24.2007 3:12pm
Chris Bell (mail):
Thanks, I messed up the end a bit. I was trying to give an example against Scalia's activism and then one for.
10.24.2007 3:13pm
Constitutional Crisis (mail):
That should be Stevens, not Brennan, in my example. I have no idea how Brennan ruled on agency decisions.
10.24.2007 3:16pm
martinned (mail) (www):
L.S.,

Interesting research, regardless of whether the label "activist" is appropriate. I've been reading about the Chevron doctrine lately, and I'm wondering if anyone knows where Miles &Sunstein will publish their full article.

(@Constitutional Crisis: I would consider Chevron to be more a matter of separation of powers than rule of law, but that's just me...)
10.24.2007 3:28pm
tarheel:

But I question whether conservatives are even willing to apply that definition neutrally -- it would seem to apply to the Supreme Court's Eleventh Amendment jurisprudence, for example, which is admittedly not based on the text of the Eleventh Amendment.

This, to me, is the most interesting test. Are those here who regularly decry "liberal activist judges" equally appalled by the Court's 11th Amendment jurisprudence, which is, to say the least, less than faithful to the text of the Constitution?
10.24.2007 3:39pm
go vols (mail):
The most obvious reason as to why they chose this methodology is that it is easy to measure deference and activism under these terms. Imagine, by contrast, a study that tried to measure activism as a judge's decision to replace "the correct ruling that is required by the text of the Constitution with a ruling that satisfies a judge's own policy preferences." Good luck with that. If we had any consensus on such matters, we wouldn't need the Court in the first place.

That's not to say the definition of activism (policy preferences over the text) advocated by the early comments is wrong; it's just not terribly helpful for broad-based studies. The method Sunstein and Miles uses does raise problems of "the drunkard's search," but there's a respectable argument that while the Constitution is not indeterminate, it certainly lacks clear meanings at important junctures, and that in those gray areas, a Court may either defer or reject the interpretation of the democratic branches. Knowing whether a judge does this or not, I submit, is useful information.

I suspect many of these objections (ala Whelan) are a farce, regardless. How many opponents of "judicial activism" ala Roe v. Wade would be willing to support a national anti-abortion law under Raich if Roe was overturned? How many advocates of the second sort of "activism" leaped to condemn Alden v. Maine? This number may not include too many readers on this blog, but I suspect it would get a fairly large proportion of those conservative politicians who use the phrase "judicial activism" as an epithet.
10.24.2007 3:40pm
PatHMV (mail) (www):
My point, to try to make it again, is that the two sides of this debate (loosely speaking conservatives and liberals) both use DIFFERENT definitions of the word "activism." Thus, studying what judges are "activist" serves only to promote confusion, to deepen the misunderstandings harbored by both sides of the other.

Personally, my understanding is that conservatives used the term first, and liberals have subsequently appropriated it and used it to mean something different. Whether this is because of genuine misunderstandings of how conservatives used the word, misuse of the word by conservatives, or intentional straw-manning by the left is immaterial. And even if my understanding is wrong, and there's always been a debate about what the phrase "judicial activism" means, the simple, indisputable fact is that both sides do indeed define it differently.

There are two different concepts, and to promote understanding of the debate, there should be two different words. It's certainly to the credit of the authors that they carefully define what they mean by "activism." But in a public debate like this, the strictures of the definition quickly get lost. One side or the other needs to pick a different word.
10.24.2007 3:40pm
MJG:
As others have pointed out, this is a bit bizarre. I'm not sure if it is a true "criticism" of this metric, but I and most others could have guessed this result a priori, simply considering former Administrative Law Professor Scalia's views on agency actions and his upbringing in the Agency-scrutinizing world of the D.C. Circuit (and as a major player in those debates).

And on the other end, former Administrative Law Professor Breyer's professed deference to Agency determinations. This is just a weird study. Certainly for those two Justices, the study captured no more than empirical evidence of what they have been preaching since before either were ever on the court. Insights indeed.
10.24.2007 3:40pm
Constitutional Crisis (mail):
@martinned: Not mutually exclusive. Chevron is the law; ergo, proper deference to agency action is following the rule of law. That does not meant that part of the justification for Chevron is out of concern for the separation of powers.
10.24.2007 3:41pm
Frater Plotter:
Surely there are cases in which, using the normal meaning of the term, federal agencies engage in "activism": the creation not only of new law via regulation, but also of political advocacy. Consider, for instance, the Environmental Protection Agency or the Drug Enforcement Agency. Both are unelected agencies that take explicit stands on controversial political claims, going so far as to engage in propaganda on those issues.

As such, I suggest that a better word than "activism" for judiciary restraint of agencies be chosen. How about "doing the damn job of checks and balances"? :)
10.24.2007 3:51pm
sdf (mail):
At least Miles &Sunstein define the way they are using the term "activist," whether or not one agrees with that definition. Too often the term "activist" has simply been a pejorative code-word for "liberal." Its substantive meaning as a jurisprudential matter has been thoroughly ambiguous and therefore very hard to critique or refute. Which is perhaps one reason why Scalia &Co. get so much mileage out of that term.
10.24.2007 3:55pm
Saxton:
I agree with PatHMV. My take is that it was that it was the New Left that consciously distinguished itself from "establishment liberals" by describing its function as "social activism," i.e., intentional action to bring about social or political change.

As a result, judicial conservatives (not necessarily the same as political conservatives) to describe a decision that appeared to be based on a desire to achieve social or political change --- and not on existing law --- as an "activist" decision, i.e., made in the spirit of New Left social activism.

It seems as though the definition of activism as "striking down a lot of laws" is the coinage of judicial liberals (again, not necessarily the same as political liberals) who feel more comfortable with criticizing judges who strike down a lot of decisions than judges who base their decisions on social activism.
10.24.2007 3:56pm
Pliny, the Elder (mail):
If this study matters, it makes me wonder why the dissent in Bond v. U.S. has not drawn more attention.
10.24.2007 3:57pm
Saxton:
Second paragraph should start "As a result, it was natural for judicial conservatives. . ." Sorry about that.
10.24.2007 3:57pm
Hoosier:
Scott Scheule--But ALL texts are radically indeterminate. Including course descriptions of post-modern courses. And this post.

So I don't know why I bothered learning to write. Or read.

Never mind.
10.24.2007 4:13pm
Adam J:
Saxton- uh... what? Social activism doesn't have anything to do with judicial activism. Try again.
10.24.2007 4:15pm
Steve:
Steve, Do you mean to say that all interpretations of the constitution are equally valid? That is the necessary logical implication of your comment.

No, of course not, but I believe many provisions of the Constitution have more than one defensible interpretation.

When people say, "This ruling is inconsistent with the text," they often mean, "This ruling is inconsistent with my interpretation of the text."
10.24.2007 4:16pm
Adam J:
Guys, I'd suggest looking at some of the Supreme Ct decisions where they actually use the term judicial activism(a little Westlaw search of "judicial activism" would do the trick). The term is frequently used by the members of the court when it is considering overturning an agency action or overturning stare decisis- not when it is simply interpreting the Constitution (perhaps because this is the actual job of the Justices).
10.24.2007 4:30pm
Chris Bell (mail):
Does anyone have a link to that Justice Breyer speech about activism. He went to most of the top law schools giving it. He talked about the 7 possible definitions of "activist" and explained how they didn't fit the facts. (Unless you were talking about overturning precedent, which made Scalia and Thomas activist.)

I'm not sure that this is it, as I can't listen to it right now.
10.24.2007 4:45pm
Chris Bell (mail):
And here is Ronald Reagan, supporting the definition I gave earlier:

I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.
10.24.2007 4:46pm
Richard S (mail):
On the eleventh amendment, the constitutional argument that "conservatives" make is based upon an inference from the text. If memory serves, that amendment was made to overturn the Court's conclusion that the Federal government may impinge upon the sovereign imunity of states in matters that cross state lines. The people ratified the eleventh amendment to certify that they never intended to give the federal government such power. That being the case, it is reasonable to infer that the people did not believe that they gave the federal government power to rule in cases that never leave a state

The key point is that most of the people who ratified the constitution presumed that sovereign immunity presumptively belonged to states. James Wilson and others might have been correct that the idea of such sovereign immunity was hard to reconcile with the idea of natural right, but that does not mean it's not what the people wanted and ratified. Moreover, the eleventh amendment, they thought, confirmed that interpretation.

The other important question here is the question of precedent. Is there a constitutional equivalent of adverse possession. After a long enough time, does bad law become constitutional, just as after a long enough time squatter on someone else's property becomes an owner?
10.24.2007 5:38pm
not buying it:
OK, we can fairly debate whether "activism" has meaning, and whether it's more about text or precedent or deference to political branches, or whether liberals and conservatives are equally guilty of it, or whether it's a good or bad thing, or whatever.

But M&S are pulling deliberate BS in defining it solely in terms of federal agency deference, and then using it to say, "see? not what you thought, eh?" That's a sleight-of-hand to connect it to the broader debate about activism, as most people arguing about Roe or 11th Amendment or whatever probably had no preconceived notion about activism-re-federal-agencies-only. Instead, most arguments center on Roe, and on Lawrence, and on substantive due process generally, and most of those cases are constitutional attacks on democratically-adopted STATE laws. And to the extent that a potential Roe reversal is also described as activist (as anti-precedent), that shows that both sides of the Roe debate agree that activism involves cases such as Roe, not merely agency cases.

So M &S here are trying to fight the Roe etc. battle, but without joining it. A few years ago, some other academics played the same game (sorry, no time to Google), but by measuring only invalidation of federal laws (to pick up 11th Amendment cases) but excluding all state law cases (again, conveniently excluding abortion etc.). At the time, many critics noted the convenient gerrymandering, and Sunstein must have been aware of it.

So to play the same game again is bogus. Again, there may be a fair debate about activism more broadly. And there may be a separate legitimate debate about federal agency deference and whether Scalia is a hypocrite on selective use of Chevron or whatever. But trumpeting a study on the latter as having bigger implications is BS.
10.24.2007 5:57pm
Brett Bellmore:

I have to admit I laughed when I read Bpbatista's- trying to define activism on something as subjective as being "wrong".


If "wrong" is subjective, (Rather than just something that it's difficult to be objective about.) then we might as well replace constitutions with sheep entrails, in as much as when nobody can be wrong, nobody can be right, and having a text serves no real purpose except to generate an illusion of the rule of law.
10.24.2007 6:06pm
Adam J:
not buying it- people definately had preconcieved notions that liberal judges were more likely to overturn executive branch decisions... that said, I think you're right that this is a selective study and there could be significantly different results regarding deference to state laws. Certainly that's a better argument against the study then the people redefining activism as a synonym of liberalism.
10.24.2007 6:09pm
Adam J:
Brett, maybe you should read a court decision sometime, any one will do, reasonable men disagree on right and wrong all the time. You don't simply define something as wrong, you attempt to prove why it's wrong. Simply saying something is wrong is starting at the finish line- you've accomplished nothing.
10.24.2007 6:26pm
CJColucci:
This, to me, is the most interesting test. Are those here who regularly decry "liberal activist judges" equally appalled by the Court's 11th Amendment jurisprudence, which is, to say the least, less than faithful to the text of the Constitution?

No.

And for those who care about this sort of thing, "sovereign immunity" is not the same thing as Eleventh Amendment immunity. Whether a state is immune to suit in its own courts by its own citizens is a matter of state law (some states have never had sovereign immunity), about which the Constitution is silent. No state is sovereign in the courts of a different sovereign. If a citizen of New Jersey wants to sue a New York State entity in New Jersey courts, New York cannot plead its sovereign immunity in New Jersey's courts. But New Jersey is polite about it and declines to hear such cases as long as -- and only as long as -- New York returns the favor.
Before the 11th Amendment was adopted, there were damn few ways, sovereign immunity aside, that a state could be sued in federal court. There was no such thing as general federal question jurisdiction, and the main way to sue a state in federal court, as in Chisholm v. Georgia, was through diversity jurisdiction. Obviously, you couldn't sue your own state in diversity jurisdiction. The 11th Amendment closed out the diversity option, but did purport to reach anything else. There wasn't much else to reach until the Reconstruction era civil rights acts and general federal question jurisdiction came around in the latter half of the 19th century. Then, they just made it up to prevent citizens from suing their owen states. This may or may not have been wise, and may or may not have reflected that a Constitutional amendment sized consensus would have opposed a contrary reading, but they still just made it up.
10.24.2007 7:11pm
MarkField (mail):

No state is sovereign in the courts of a different sovereign. If a citizen of New Jersey wants to sue a New York State entity in New Jersey courts, New York cannot plead its sovereign immunity in New Jersey's courts. But New Jersey is polite about it and declines to hear such cases as long as -- and only as long as -- New York returns the favor.


Just a footnote to your post, with which I otherwise agree: If one state wants to sue another, it files suit in the SCOTUS under the original jurisdiction clause.
10.24.2007 7:36pm
theobromophile (www):
Agree re: CJ's explanation of the Eleventh Amendment. After Chisholm v. Georgia (where the Supreme Court ruled that a citizen of another state could sue a state in federal court, under diversity jurisdiction), the Eleventh Amendment was passed to overrule the result. The text of the 11th Amendment seems to be limited to another state/foreign state suits in federal courts, leaving open the possibility of a citizen suing his own state in federal court, but the Supreme Court cut that off. Of course, they then brought it back through various machinations.....

---

One could define "activist" as "results-oriented." Granted, a judge who reaches a result that he personally likes is not automatically acting in an activist mode in that instance; the law may have warranted that outcome. Roe seems to be the classic example of "activist" judging. One benchmark is that pro-choice persons (of both liberal and conservative persuasions) think that it is wrongly decided. It is not that they think there is an unenumerated right to abortion in the Ninth Amendment and the case could have been decided (albeit incorrectly) on those grounds; many people simply believe that it is not a constitutional issue.

Why not use a metric that accounts for cross-ideological approval or disapproval? or fealty to principles, even in the face of an undesirable result?
10.25.2007 3:13am
Cornellian (mail):
Just a footnote to your post, with which I otherwise agree: If one state wants to sue another, it files suit in the SCOTUS under the original jurisdiction clause.

Original jurisdiction, not exclusive jurisdiction.
10.25.2007 4:19am