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Counting Votes to Strike Down Legislation -- The Surprisingly Flat Graph:
In a recent article, Professor Lori Ringhand counted the number of votes that each Justice of the Rehnquist Court cast from 1994 to 2005 to strike down state or federal legislation. Ringhand presented the federal and state votes separately, without combining them, but a pretty remarkable thing happens when you combine the two sets of figures (Tables 1 and 6): It turns out that there is a remarkably degree of uniformity in the total number of votes to strike down legislation.

  If I'm reading Ringhand's figures correctly, 8 of the 9 Justices voted to strike down legislation between 57 and 67 times over that period. Chief Justice Rehnquist is the only outlier, with only 46 votes to strike down legislation. I put the numbers up on a chart here:

  I should add that these sorts of numbers may incorporate a significant degree of subjectivity. For example, the line between a vote to strike down legislation and a vote to invalidate executive action more generally is hard to draw.

  Still, I found the combined chart pretty fascinating. We tend to hear primarily about the Justices' votes to strike down federal legislation. It's relatively common for commentators to say that the conservatives vote to strike down federal legislation more often than the liberal Justices do. However, the combined chart suggests a remarkable degree of uniformity in the rate at which the Rehnquist Court Justices voted to strike down legislation if you combine both federal and state cases. Ginsburg, Thomas, Souter, Scalia — they all vote to strike down legislation at almost exactly the same rates. They differ on which statutes should be struck down, but at least based on the docket of the Rehnquist Court did not differ on how often statutes should be invalidated.
Asher Steinberg (mail):
But does combining the two tell us much? I mean, you can make a case from this data that the right wing of the court isn't any more activist than the left if you understand activism in very broad terms, but I think that may be a crude way to gauge activism/restraint. There's naturally going to be a trade-off between being more apt to strike down federal laws versus state ones. In part this is a federalism thing, but I think it's also a matter of the types of law states and Congress make. With states you're often going to be dealing with criminal law, which the right wing is going to be a lot more deferent to for obvious reasons; with Congress there's always the question of whether they have the power to pass a given law, and there the right wing, being somewhat more bound by text, will be more activist. I guess there's also an argument, or at least some kind of implicit sentiment behind some of the criticisms of the Rehnquist Court, that overturning an act of Congress is somehow more activist than overturning a state law, that Congress is owed more deference than state legislatures. That may just be a liberal prejudice, but there is something to be said for it; all things being equal, isn't it more activist to strike down a law that applies nationwide than one that applies in just one state?
2.25.2008 1:56am
Vermando (mail) (www):
Really cool stuff - appreciate it greatly when you post wonkish but informative bits like this. It won't get as many comments as someone's musing about feminism or the 1L curriculum, but I find it really great when you steer us to facts and analyses that may otherwise escape our attention.

Thanks greatly!
2.25.2008 1:59am
OrinKerr:
All things being equal, isn't it more activist to strike down a law that applies nationwide than one that applies in just one state?

Why? Note that many states may have the same law; invalidating a law in one state will often invalidate identical laws in other states, even if it gets counted as only one vote.
2.25.2008 2:01am
OrinKerr:
I really appreciate that, Vermando. "Wonkish but informative" is indeed the aim.
2.25.2008 2:08am
Jim Hu:
Does this constancy just reflect something about the kinds of cases that make it to SCOTUS?

IANAL, so I can't put my finger on what that might be. But it might be interesting to know if the numbers are different for votes to grant cert. You'd probably have to break out which cases had the lower court overturning or upholding the laws.
2.25.2008 4:07am
Cornellian (mail):
I wonder how many of those state statutes were invalidated based on real constitutional arguments, versus how many were invalidated based on Supremacy / preemption arguments, which are really about interpreting federal legislation, not the Constitution.
2.25.2008 4:32am
Duffy Pratt (mail):
Is this a tabulation of votes where the statutes were actually struck down, or does it also count votes where a dissent says that it would have struck down a statute, if the judge could have gotten more of the others to agree?
2.25.2008 6:14am
James Grimmelmann (mail) (www):
Why did you put this data in a line chart? This isn't a time series; it's not data that comes in a natural, equally-spaced order. If you go from Justice O'Connor to Justice Kennedy and then as far again beyond, you don't end up at Justice Scalia. Wouldn't it make more sense to show these numbers as a stacked bar chart?
2.25.2008 7:57am
Lori Ringhand (mail):
I can answer some of these questions. The numbers include only constitution-based strikes, thus excluding statutes invalidated on pre-emption grounds. They also include all cases in which the justice voted to strike a law, whether the justice was writing in the dissent or the majority.

I think the combined numbers are interesting, although I agree with Asher that the combination ultimately may not be that informative: whether one believes that striking state laws is more activist (b/c it often invalidates numerous similar laws in other states) or less activist (b/c it is less aggressive than striking a law of a 'co-equal' Congress) it seems that the two types of strikes are different. Since one of the main objectives of the paper was to illustrate precisely how each justice was using his or her invalidation power, combining the numbers may obscure more than it illuminates. I certainly agree, however, that it is important to talk about both sets of numbers, rather than picking out or or the other.

The more interesting information, I feel, is the issue area numbers reported in the paper. Those numbers make it clear that the main areas of disagreement between the "liberals" and the "conservatives" are First Amendment cases, Federalism cases; and criminal process cases. There also is an underlying difference in the Civil Right cases - the justices vote to strike similar numbers of laws in this issue area, but the types of cases in which they do so are very different.

There are state/federal distinctions within these issue area differences. In the First Amendment area, for example, the conservatives made most of their strikes in re: federal legislation (the First Amendment was in fact the area where conservatives justices cast most of their invalidation votes - topping even the Federalism cases). The liberals also have a lot of First Amendment strikes, but they were more likely to cast such votes in re: state laws.

I do agree with Orin that one of the most interesting things here is the overall low number of invalidation votes cast by Justice Rehnquist. His mode of judicial conservativism seemed genuinely different in this regard than that of his conservative colleagues.
2.25.2008 8:19am
alias:
Same question as Jim Hu.

Every now and then I see articles claiming that votes to strike down legislation are "activist" and that certain justices are more "activist" than others. Given the filtering that goes on in the cert process, this seems like a classic case of selection bias.
2.25.2008 9:18am
Pon Raul (mail):
Why SOC? Shouldn't that be SDO?
2.25.2008 9:19am
Mitchell J. Freedman (mail) (www):
This analysis is helpful, but does not seem to control for situations where less "conservative" justices, such as Souter and Stevens, voted to overturn federal or state legislation because they were living with precedent from the more "conservative" justices during the past 10 or so years. I think if there were some controls for that point, one would find what commentators are noticing about the propensity of the later Rehnquist court and the Roberts Court to strike down legislation in ways that remind me of the Gilded Age Supreme Court Justices.
2.25.2008 9:47am
frankcross (mail):
I'm not sure how selection bias affects this. Because the justices control cert decisions too. Now, maybe the liberal justices are voting for cert in state laws to strike and the conservatives for cert on federal laws to strike, but that would simply be more support for the findings.
2.25.2008 10:37am
OrinKerr:
A pretty good model for when the Court grants cert in cases like this is either the existence of a split (in the case of state statutes) or else a lower court decision striking down a federal statute. The Court will almost never grant without either of those, will usually grant if there's a split, and will almost always grant if the lower court decision strikes down a federal statute.
2.25.2008 10:49am
John Burgess (mail) (www):
What James Grimmelmann said.

To be a true wonk, you need to use the right tool. A line graph is intended to demonstrate change, whether over time or some other changing variable. The data presented is static and a bar graph would be the right way to do it.
2.25.2008 10:58am
Lori Ringhand (mail):
The paper does discuss votes cast to formally overturn precedent. Thomas, Scalia and Kennedy top that list.

Another way to think about the relative degree of "activism" of a decision to invalidate legislation - which I did not develop in this paper - is to consider how many other justices agreed with a given justice's vote to invalidate legislation. It is probably reasonable to assume that the law in cases decided by a 9/0 or 8/1 vote is clearer than that governing cases decided by narrower margins. Vote margin information thus could provide another measure of the 'intensity' of the activism evidenced an invalidation vote. I haven't studied these numbers, but a quick look indicates that Justice Stevens, who cast the most votes to invalidate state law, cast 32 percent of those state invalidation votes in 5/4 decisions. Justice Thomas, who cast the most votes to invalidate federal law, cast 53 percent of those votes in 5/4 decisions. To be clear, I haven't calculated all of these numbers or thought through all of the arguments regarding what this type of information may show, but the vote margin data is in the paper Appendix if anyone is interesting in doing so.
2.25.2008 11:06am
William D. Tanksley, Jr:
All things being equal, isn't it more activist to strike down a law that applies nationwide than one that applies in just one state?


No. It may be more active (possibly), but it's not more activist. Striking down laws, whether local or federal, is one of the actions that judges are permitted to take. A judge might reveal activism by his or her actions in context, but simply taking action doesn't show activism.
2.25.2008 11:29am
Greg D (mail):
It's amazing that not one of the previous commenters has considered the fundamental difference between striking down state laws, and striking down Federal laws:

The Federal Government is only supposed to have enumerated powers. If the Constitution doesn't explicitly grant the Federal Government a power, then it's a violation of the Constitution for the Federal Government to exercise that power.

The State's, OTOH, have, under the Federal Constitution, any power that they are not explicitly denied. The primary source of limits on the power of State governments should be coming from the State consitution, not the Federal Constitution.

That, at least, would be the situation if you had a Court, and Justices, that actually valued the Consitution, and Federalism.

The data, therefore, tell a clear story. The "conservative" justices know their job, and focus on keeping the Federal Government in line with the US Constitution.

The "liberal" justices care mainly about forcing their political agenda on the rest of us, and treat the US Constitution as a ink-blot to be read however their desires go that day.

Thanks for making that so clear.
2.25.2008 7:22pm
Jim Hu:
Perhaps the previous commentators have actually heard of the 14th amendment.
2.25.2008 10:11pm