Take the question of how activist are Supreme Court justices. Counting the justices' votes, I submit, doesn’t permit an inference about how activist Justices are until we answer several analytic and normative questions. First, we must determine just what “judicial activism” means and to which kind of vote it applies. Do striking down and upholding laws both count as activism? Striking down a law seems paradigmatic. Sitting idly by and upholding a statute seems to be a horse of a different color. Yet, if both are decisions, one to strike down, the other to uphold, then arguably, either decision can be viewed, and should be viewed in the appropriate cases, as activist. Indeed, in many cases, for example, Plessy, upholding a law has vast implications in licensing the legislatures across the country to pass pernicious statutes. Pinning down which type of decision is activist requires conceptual analysis and normative choices. If I include upholding laws as activist, my reason is that it explains the phenomena better than restricting activist choices to strike-downs alone. However elementary, the normative is clearly involved in this choice.
But more important, the fact that the empirical data indicates how many laws particular justices strike down and how many they uphold has little significance unless we compare it to the appropriate baseline. Unless we know in each case whether the law is constitutional, we have no way of assessing the significance of the data. If the question of constitutionality is normative, and I can’t see how that can be denied, the entire process is normative. Let me explain. We wouldn’t call a justice an activist justice, even if she struck down every law that came before the Court, if every such law were constitutional. In this instance, the justice is simply defending the Constitution against unconstitutional statutes. Judicial activism should be made of sterner stuff. Similarly, we wouldn’t describe a justice as restrained if she upheld every law that came before the Court if every such law were unconstitutional. A normative baseline is required in making sense of the data and using it to render judicial activism an analytically useful concept. Neither will the data reveal a justice’s conception of the relationship between the Court and the elected branches unless we have a normative baseline. Without such a baseline, a justice evinces no particular attitude toward the elected branches except that they should pass constitutional statutes only. And if they fail to do so the justice can be counted upon to strike the unconstitutional statute down. Hence, the normative question of whether a particular law is constitutional is conceptually and methodologically prior to the seeking out and understanding the empirical data. Without this baseline the empirical data recording strike-downs and upholdings does not reveal anything more than a brute fact.
The above senses of “normative” are a far cry from the mother of all senses of the term “normative” pertaining to whether the justices should declare a law to be unconstitutional. Rather, it is a sense of “normative” required to reveal the relevance of the empirical data regarding the original question of how activist is the Supreme Court. Without the requisite normative baseline the relevance of the data to answering the original question is absent. We can, of course, use this data, from either a conservative perspective or a liberal perspective, to determine how many times a particular justice votes favorably in support either perspective. But the results of this inquiry are known or easily discernible. Also, it is difficult, if not impossible, to achieve consensus on a non-normative interpretation of these perspectives. On every level of human inquiry, I submit,—from the empirical to the theoretical to the unabashedly normative—the ubiquity of the normative makes its presence felt. When we ignore the normative, we rob ourselves of the social significance of the data and of its potential power to improve legal practice and society.