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July 06, 2005

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...

Posted by DeLong at July 6, 2005 02:58 PM