According to the NYTimes OpEd page, it seems the judges most likely to pronounce an act of Congress to be unconstitutional are those generally defined as Conservative. From the birth of the nation until 1858 — 67 years — the Court struck down congressional legislation twice. The next 133 years saw occurrences about every 2 years. Since 1991, with the “Reagan Court” the justices have made 64 such decisions.
So what is judicial activism, anyway? My favorite definition of morality is the fear that someone, somewhere, is having a good time: this sounds like more of the same.
So Who Are the Activists? – New York Times:
How often has each justice voted to strike down a law passed by Congress?
Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That’s because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act ‘of great delicacy, and only to be performed where the repugnancy is clear.’ Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial 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.
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.
