The Nazz
07-07-2005, 04:34
The New York Times (http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?) had an interesting op-ed piece today on activist judges on the Supreme Court, and since we're about to go through a nomination battle--with all the requisite flame threads around here--I thought it might be interesting to get this out there.
There's a constant bleating from the right on how liberal judges legislate from the bench--it's crap, of course, but they've been so effective that many people believe that it actually happens. But what happens when people actually look at the records of the current Supreme Court justices and looks at how often they move to overturn legislation?
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.
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.I have to admit that I was a little surprised by this list--even I, who is a firm believer that the liberal activist judge argument is a myth--still expected the "liberal" judges to be a little higher than they were. Where I was really surprised was to see Anthony Kennedy in second place--I figured him for fourth at least behind Scalia and Rehnquist.
Now admittedly, this is only one measure of activism from one court, so it's by no means definitive. But here's a challenge to you right-wingers who want to dispute the findings here--how about you actually come out with a counter-argument rather than simply dismissing something that's a little inconvenient?
There's a constant bleating from the right on how liberal judges legislate from the bench--it's crap, of course, but they've been so effective that many people believe that it actually happens. But what happens when people actually look at the records of the current Supreme Court justices and looks at how often they move to overturn legislation?
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.
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.I have to admit that I was a little surprised by this list--even I, who is a firm believer that the liberal activist judge argument is a myth--still expected the "liberal" judges to be a little higher than they were. Where I was really surprised was to see Anthony Kennedy in second place--I figured him for fourth at least behind Scalia and Rehnquist.
Now admittedly, this is only one measure of activism from one court, so it's by no means definitive. But here's a challenge to you right-wingers who want to dispute the findings here--how about you actually come out with a counter-argument rather than simply dismissing something that's a little inconvenient?