Activist Judges

Here is a nice article in the New York Times about the perception of Judicial Activism and the truth behind the label. Like so often heard, this attack of an "activist" judge is quite often thrown out at more liberal judges by the right wing, although often not substantiated by much evidence or justification. In a recent study, Professor Paul Gewirtz of Yale Law School looked at the truth behind the myth of activist judges by defining it in one simple way: How often has each justice voted to strike down a law passed by Congress?

The results might surprise:

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.

Not that it matters what studies say, as we all know quite well that those on the far right are too often denying the existence of science and any sort of logical reasoning in favor of highly emotional and irrational debate. Still, it is quite incredible to see that all that they have been preaching for the last few years is nonsense when we look at the nation's highest court.