Evan C. Zoldan (University of Toledo – College of Law) has posted Measuring Judicial Ideology Through Tools of Interpretation on SSRN. Here is the abstract:
Although judicial ideology is well-accepted among legal scholars and political scientists, there is no universally recognized way to confirm or measure it. Literature measuring judicial ideology often infers the ideological preferences of judges from their behavior or from the behavior or observations of others. For example, one well-known measure infers judicial ideology from the ideological preferences of the president or governor who appointed the judge.
This Article introduces a novel approach for measuring judicial ideology: observing how judges respond to new tools of statutory interpretation. Sometimes a new tool of interpretation is strongly identified with a particular ideology. When a judge adopts or rejects a tool with strong ideological associations, the rejection or adoption itself can be considered evidence of the judge’s ideological preferences. This methodology, which focuses on judicial citation of emerging tools of interpretation, may be referred to as the Canons and other Interpretative Tools as they Emerge (CITE) Methodology.
After introducing the CITE Methodology for measuring judicial ideology, this Article considers the recent emergence of two interpretive tools that are strongly associated with the conservative legal movement: the major questions doctrine and corpus linguistics tools to interpret legal texts. Reviewing an original data set of state supreme court cases reveals the extent to which state courts are associated with the conservative legal movement. These conclusions, alongside other measures of judicial ideology, can help elucidate ideological preferences of state courts.