Measuring Judicial Minimalism on the Roberts Court

Abstract

In this paper, we propose a comprehensive technique to accurately measure various options judges have when exercising their power of judicial review. We begin with a discussion of problems with way judicial review has been conceptualized, namely as a dichotomous — uphold or strike down — choice. We then propose a new way to operationalize judicial review. Our nuanced measure considers both narrow and broad variants of upholding or striking behavior. We identify five distinct categories: (1) Uphold Broadly, (2) Uphold Narrowly, (3) Strike Down As Applied (4) Strike Down On Face Narrowly, and (5) Strike Down On Face Broadly. We also demonstrate how different combinations of these categories can help measure different conceptualizations of judicial restraint – conventional judicial restraint, judicial minimalism and passive We then explicate our measure through a detailed examination of illustrative Supreme Court decisions for each category. We also present results from data we have coded for all of decisions of Rehnquist and Roberts Courts from 1994 term through end of 2011 term involving judicial review of federal law. Ultimately, we suggest that our more nuanced measure of judicial review will help us better understand judicial decision making, particularly as it relates to separation-of-powers questions and broader impact of decisions of lawmaking and policymaking in Congress and executive branch. Understanding choices justices face when voting to dispose of a case will also help our understanding of choices justices make in decision-making process. We conclude that Roberts Court has become a more minimalist that its predecessor, Rehnquist Court, primarily through exercising what Alexander Bickel termed, the passive virtues.