Wednesday, July 06, 2005

Activist schmactivist

New NYT op-ed on the science behind judicial activism. The authors define activism:
We've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

They then use this definition to rate the Justices, and come up with the following stats:
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 %

The authors find this outcome surprising, but it makes perfect sense to me.

Congress has passed many a crazy law in its time. How about banning partial birth abortion without an exception for the mother's life? I doubt many Americans are too thrilled about the Bankruptcy bill. Congress is supposed to be representative of the majority, but there's no question they pass a number of bills that would be rejected (for better or worse) if the electorate was allowed to vote on them directly.

Take Thomas for instance. He was appointed in 1990, when Democrats had the House and Senate. Not to mention Clinton was in office from 1992 til 2000. Wouldn't it make sense that a conservative judge might object more often to the laws passed by an overall left-leaning House and Senate?

I appreciate the author's intent, which I believe is to prove that the right's claims of judicial activism are bunk. But let's not forget the whole concept of judicial activism is fabricated by the right as a means of gaining support for their goals. It's not the Supreme Court who even caused all recent uproar in the first place! It was judges in San Francisco, Massachusetts, and most notably, Florida.

But this piece's strongest point isn't that the right is hypocritical, but that "judicial activism" is normal, and frankly, necessary. Their stats reveal that conservatives are just as (in fact more) likely to overturn laws. That makes "activism" seem a hell of a lot less partisan.


At 7/06/2005 10:05 PM, Anonymous stealthbadger said...

This is what you get when you not only get to decide the subject matter, but the scope of your research and the definitions used for your metrics. You're left scratching your head wondering just what your research is trying to tell you.

I dunno. It seems like they did a lot of research and effort, were at a loss as to what to do with what they had found, but didn't want to waste all the time they'd spent researching. It would have been a much better article if they'd thrown the whole question of judicial activism into the trash before writing the piece, said "look at what we found," then drew direct inferences from the information (much as you did).


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