Tuesday, August 23, 2005

Judicial Activists

The term "activist judge" is a label invented by conservatives to attack mainstream or liberal judges. The term is not part of an honest debate, as indicated by the lack of a distinct definition for the term. "Legislate from the bench" is not sufficient.

Under one definition -- how often the court strikes down federal congressional legislation -- it is the conservatives on the court who are the activists.

Since 1994, the Court has "upheld or struck down 64 Congressional provisions."

Percent voted to strike down:

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 %


Of course there are a number of problems with this analysis. First, it does not address striking down state laws, or administrative rulings or other executive actions. Second, one can claim that present laws are influenced by past (liberal activist) court decisions. For example, states will not attempt to pass a law allowing segregated schools because it has already been ruled unconstitutional. However, legislatures have not faced constitutional pressure from a conservative majority on the court for many years prior to Thomas' appointment. Thus, equally conservative judges would have to vote to strike down more laws. Third, there are some situations where nearly all legal scholars would agree that the Court should strike down a law as unconstitutional, leading people to opine that not striking down a law can be activist. Where to draw this line is usually tied to each person's political preferences.

What this really tends to show is the uselessness of the category "activist judge." I think those that use the term as a pejorative really have only one issue in mind: the use of the Due Process Clause with respect to sexual and gender issues, such as a right to control reproduction or engage in certain sexual acts.

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