Thursday, May 28, 2009
By my measure, Judge Sotomayor is less activist than the average judge and does pretty well compared to many other notable appellate judges.
(In criminal cases, "Sotomayor looks a tad more defendant friendly relative to her peers. However, given the small sample sizes, the difference is not significant," Yung writes in a follow-up post.)
Yung ranks Judges Guido Calabresi and Richard Posner as the most activist in his sample; he ranks Judges Diana Gribbon Motz and J. Harvie Wilkinson III as the least activist.
What is an "activist"? Yung:
Judges are "activist" when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise. The key to the definition is the concept of substituting judgment. Ultimately, activist judges subordinate the opinions of others in favor of their own. . . . I refer to "constitutional actors" as the primiary government actors in the U.S. Constitution: the courts, Congress, the executive, and state governments. So if an appellate judge is reviewing an appeal of a suppression motion decision and substitutes his or her judgment in place of a police officer, that review has no "activist" implications. However, reviewing the judgment of the district court does.
Yung will present his work this weekend at Law and Society, Saturday at 4:30.