Thursday, January 18, 2007

Will the Real Activist Judges Please Stand Up?

[Originally extended July 6, 2005 at the old Brainmortgage offices.]

The New York Times (only the world's sixth-rated newspaper, thank you. Mazel tov to the FT.) has an op-ed from Paul Gewirtz on so-called judicial activism.

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.
This seems like a pretty good definition. Gewirtz goes on to point out that, by this measure, activism per se is not a bad thing. That depends on the constitutionality of the laws they are striking down.

What if we took "activism" to mean the expansion (or contraction?) of rights? That is, to rule in such a way as to either expand or contract the rights of citizens is to be an "activist" judge. Who would be the activists, then, and in what direction?

Thanks to Dave for this one.

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