Activist Judges

**Lemur** · 07-06-2005, 17:34

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.

**Don Corleone** · 07-06-2005, 17:38

Maybe if you posted a similar study showing how many times a judge voted to expand the powers of government versus voting against it, you might get some insight into what we're talking about.

**scooter_the_shooter** · 07-06-2005, 17:42

I think judges should follow what the constitution says and nothing else.

**Gawain of Orkeny** · 07-06-2005, 19:18

I think judges should follow what the constitution says and nothing else.

Thats pretty much it but for some reason liberals seem to have a hard time realising thats the job their supposed to do just as they dont understand its the presidents job not theirs to nominate these judges. Ive heard the analogy that supooose you left a will and left 50 thousand dollars to Sam. An activist judge would rule hey he dont put it in there but I know he would of wanted 10k of that to go to Jim. Just read whats there .

**Lemur** · 07-06-2005, 20:13

Originally Posted by Don Corleone

Maybe if you posted a similar study showing how many times a judge voted to expand the powers of government versus voting against it, you might get some insight into what we're talking about.

If you can find such a study, I'd be more than happy to have a look. No thoughts on this report?

**Don Corleone** · 07-06-2005, 21:52

Well, I don't define activism as having a difference with Congress, necessarily. Example, nothing in the Constitution grants Congress the right to regulate medicinal marijuana. Yet, those justices who voted in favor of California's medical marijuana law, if we accept your definition of activism, would be considered activist, as they sided with the California state assembly over Congress and the executive branch.

My definition of activist follows more along the lines of what Gawain & Ceasar have said: whether they take a strict interpretation of the Constitution or they take a flexible interpretation of it.

**Xiahou** · 07-06-2005, 22:51

I pretty much agree. While it is an interesting statistic, I dont think it has much relevance when talking about judicial activism or 'legislating from the bench' as I often call it.

**ichi** · 07-07-2005, 02:58

they're just measuring how often a judge voted to strike down Congressional legislation

which, when done by anyone opposing the current Republican combo of President and The Congress, is considered 'legislating from the bench' or judicial activism by the neoright.

My point from previous threads is still valid. It is a responsibility of the courts to ensure that laws are consistent with the Constitution.

The fact that conservatives vote their conscience on their interpretation of the Constitution as it applies to laws they are reviewing neither surprises nor offends me, as it is their task.

What gets me is that when the votes don't go the way a particular idealogical group wants, how they start to howl.

But those who want to be convinced that the left is legislating from the bench aren't about to let facts get in the way of good story.

ichi

**bmolsson** · 07-07-2005, 03:38

Judges should not be politicall active. Neither should they be appointed politically. The judges are probably the most important group in a democratic society...