So Who Are the Activists?

From the New York Times courtesy of the Daily Kos:

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.

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.

Click here for the rest.

I've touched on "judicial activism" before. The reality is that nobody on the left or the right has any real problem with the concept. What it's all about is ideology: it's "judicial activism," a phrase usually only used by the right wing, only if it results in a decision that conservatives don't like. Even though I can easily predict a conservative response to the above linked essay - the reason conservative justices have voted to invalidate so many laws is because the 20th century has seen Congress going way beyond its Constitutional boundaries on countless occasions - it makes a really good point. Conservative justices, too, like to "legislate from the bench." Or, as the case may be, veto from the bench. Either way, it's all about the Court usurping power that the Constitution has reserved for another branch of the federal government. To be honest, I don't have a problem with this personally. What I hate is the double standard that these guys continually use. Time to knock it down.

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