Boo! It’s Judicial Activism

As we’ve seen with Judge Sotomayor, Conservatives love to howl about “judicial activism.”  This noise usually has nothing to do with the objective definition of “judicial activism,” but is instead a loaded term the Right throws around any time a Judge or Court makes a ruling they disagree with on policy grounds.

In 2005, two attorneys analyzed the decisions handed down by the Rehnquist Court (1994-2005). The simple question they asked with regard to the Rehnquist Court was:  How often has a Justice voted to strike down a law passed by Congress? 

While other measures can be used to analyze this issue, this is probably the most pertinent – particularly considering the amount of attention the Media has given to Judge Sotomayor and the Ricci case.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court’s decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

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

One conclusion our data suggests is that those 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. At least by this measure (others are possible, of course), the latter group is the most activist.

People who follow the SCOTUS probably aren’t too surprised about these findings.  Some people who listen to conservative media may want to readjust the tinfoil and take an earnest look at these numbers.

Personally, I have no predisposed  problem with “judicial activists.” After all, it’s part of the job description.  The point is that each individual decision and constitutional interpretation needs to be looked at on its own merit.  Good luck finding that objective analysis.