So Who Are the Activists?

NYT reports When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

That is not correct. Activist means a judge makes a decision based on what he/she thinks the law SHOULD BE. A judge should evaluate see just evaluate whether a law conflicts with another law, or whether there is something in the Constitution which the law is in conflict with.

In order to move beyond this labeling game, we'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. Here is the question we asked: 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.

It may be bold, but that is the primary job of the Supreme Court, to see if a law is consistent with the Constitution.

That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.

I wish laws passed by Congress did posses a high degree of democratic legitimacy. However it is the job of the Legislature to pass laws. That is NOT the job of the Judiciary. All the Judiciary, particularly the USSC, should concern itself with is whether the law is Constitutional or not.

In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." 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. Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism. 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.

Another way of looking at it is that the legislature has started passing unconstitutional laws, and the liberals are willing to let them be inforced, but the consertatives believe they are inconsistent with the Constitution.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, 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 and the judge's underlying constitutional views, which may inspire more or fewer invalidations. Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint. 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. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.

Orin Kerr blogged I addressed this argument in a 2003 essay in Legal Affairs in response to a closely related claim by Cass Sunstein. Sunstein claimed that the Rehnquist Court was more activist than the Warren Court because it had struck down more federal statutes than the Warren Court.

Tom Maguire blogged The results may surprise you, unless you happen to know that Prof. Gewiritz is a Lieberman Democrat, and you keep in mind that the Times volunteered to run this. In any case, I question both their definition and their methodology. First, an activist judge may be viewed as one who considers the Constitution to be an impediment to the sensible, well-intentioned proliferation of laws and regulations by both the courts and the Congress. The Gewirtz standard seems to set the court against the Congress, but in a different definition, Congress will fullfill its institutional imperative to expand its power, as will an activist court - the expansion of Federal power does not need to be a zero-sum game between the Court and the Congress. In which case, a "conservative" judge would be one who defends the Constitution against both the Congress and activist judges. As to methodology, Clinton's veto pen shielded the liberal justices for eight years - for example, the Federal ban on partial birth abortions vetoed by Clinton and signed by Bush has not yet come to the Supreme Court. (And let's remember the Dems controlled the Senate for much of 2001/'02.)