Activist Judges

[Lemur]

There's been a lot of talk about activist judges, but it doesn't seem there's much agreement on what "activist" means. Obviously, a judge who rules in my favor is impartial and thorough, while a judge who rules against me is activist and unelected. But is there more to it than that?

I just ran across a study (again, it's only in print, but there's a much-abbreviated version online here, which omits most of the actual number breakdowns -- weird) that uses some basic metrics to observe "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.

So they're not measuring what people voted against, or whether they carried the day -- they're just measuring how often a judge voted to strike down Congressional legislation since 1994. This is not a measure of how conservative or liberal a justice is, just how they react when ruling on legislation created by an elected body. The numbers:

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%

Again, this is not a measure of anything except how often these justices rule to strike down Congressional legislation. If you want to read more into it, that's your right, but this Lemur finds the raw data interesting all by itself. Who knew that Judge Thomas was the most likely to invalidate a Congressional law? Who knew that Breyer was least likely? I would never have gleaned that from listening to the talking heads on cable news.