Saturday, November 12, 2005
You are of course familiar with that old right-wing bugaboo the activist judge. In recent weeks we have not infrequently argued that despite its ostensibly "conservative" leanings, the Rehnquist court is about as activist as they come, and now The Atlantic has graciously buttressed our case by publishing a handy chart that shows the average number of precedents cited in Supreme Court opinions from the birth of the republic until now -- a rough and ready gauge of the Court's respect for settled law:
Analyzing opinions written from the late eighteenth century to the present, two political scientists find that the average number of citations rose throughout the nineteenth and early twentieth centuries, as the principle of stare decisis, or letting previous decisions stand, became widely accepted and the number of cases available for citation increased. Under Chief Justice Earl Warren the trend reversed, with the average number of citations in an opinion plummeting from about fifteen in 1953 to about five in 1969—a phenomenon, the authors note, in keeping with the popular perception of the Warren Court as activist or even revolutionary. Over subsequent years, as the Court gradually became more conservative, the average number of citations per opinion rose; by the early 1990s it stood at just over twenty. By the end of that decade, however, it had begun to fall again (the study does not speculate as to why), and in 2000 it was down to about seven—not much more than during the Warren era.