So Who Are the Activists? - New York Times

Gewirtz and Golder on "judicial activism":

So Who Are the Activists? - New York Times: By PAUL GEWIRTZ and CHAD GOLDER: WHEN Democrats or Republicans seek to criticize... nominees, they often... say that the judge is "activist." But the word "activist" is rarely defined.... [W]e've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.... How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do.... Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred....

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions... justices vary widely in their inclination to strike down Congressional laws.... The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O%u2019Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

...[T]hose justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so.... To say that a justice is activist under this definition is not itself negative... some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions....

These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet...

Comments

[Jon H]

I think it would have been better if they had counted overturnings of *state* laws.

I think that's what the right wingers really get upset about - when the Supremes overturn a state's idiosyncratic laws.

[Tom Hilton]

"I think that's what the right wingers really get upset about - when the Supremes overturn a state's idiosyncratic laws."

I think they pay lip service to that, but I'm not sure they really do get more upset when state laws are overturned. Either way, they don't want laws they like overturned, and they do want laws they don't like overturned.

That said, I would like to see the stats for decisions on state laws. Seems like a significant part of the puzzle, at the very least.

[Auros]

Interesting, but I think there's a real problem with the metric: You have to account for who was in the legislature that passed the laws. After all, if your legislature has become stacked with religious ideologues who do stuff like trying to pass laws banning non-Christians from running for office, your court system's sane judges will be striking down a lot of laws; and if we elected a bunch of hardcore Marxists, I'd expect sane judges to strike down their overly intrusive regulations.

If you believe that Scalia and Co. are correct about the Constitution strictly limiting the reach of gov't, then it's not activism to strike down overreaching laws.

But of course, all of this underlines the fact that the whole "judicial activist!" line of attack was wacky from the get-go. We're stuck with it because the Luntz machine has popularized it, but the truth is that the conservatives are much worse than "activists"; they're hypocrites -- they're just as happy to use the courts to make policy as liberals ever were, if not more so. (See: Schiavo, Terry)

[Jon H]

"I think they pay lip service to that, but I'm not sure they really do get more upset when state laws are overturned. "

Yeah, I don't think it's a federalism thing, but simply that state legislatures are more likely to pass laws that satisfy the hard right, but are unconstitutional.

They want to pass limits on abortion, and the damn court keeps gettin' in the way. They want prayer in the schools, and the court keeps gettin in the way.

Etc.

The gist of my point was that the right-wingiest legislative action has been more at the state and local level, than at the federal level, so the relevant statistic would be the number of state and local laws overturned by the Supreme Court.

[Felix]

your comparison assumes that the US Congress of today is much the same as early Congresses

but present day Congresses are more into "legislative activism", so that the court's record simply indicates that the legislative environment has changed

[Anno-nymous]

Wow -- and that's with 11 years of an almost entirely Republican-led Congress.

[Allan Friedman]

Would Kelo be a good example of ideology (primacy of personal property in social welfare analysis) over Federalist principles? The majority said that takings suck, but SCOTUS was not the arbiter of the public good. Scalia, Thomas, Rehnquist, and O'Connor, through their dissent, claim that the *potential* for coerced (but fair!) sale of property is enough to force the federal hand.

Comparing # of laws over-turned over time is a poor metric, since there is probably a feedback effect: A rational congress that believes a questionable bill will be struck down will pass it anyway for political purposes. Of course, "a rational congress" isn't a phrase bandied about too often....

[theCoach]

"Declaring an act of Congress unconstitutional is the boldest thing a judge can do"

This just seems flat wrong. Isn't the boldest thing a court can do interpretting enumerated rights to require executive or legislative action. Take Roe v. Wade for example (something I largely aree with). In that case, the judges set up trimesters and pronounced what they believed to be viability. Or take bussing.
It is time to put to bed this whole petard of "activism".