Monday, July 11, 2005

Objective Study of "Activist Judges"

In the heat of the political battle and with dogged determination to turn this country into a Fundamentalist Christian Theocracy the religious right and their partially owned subsidiary, the Republican Party, have lead the charge against "activist judges." Interestingly, none of the judges (even Republican judges) the right wing have labeled as activist has been a conservative and/or religous idealogue and every judicial ruling decried as "legislating from the bench" by the Republican party has been one inconsitstent with a fundamentalist/orthodox interpretation of Christian Scripture.

The idea of judicial activism or , more accurately, how one could determine if a judge was engaging in activism from the bench piqued the interest of Yale Law Professor Paul Gerwitz and recent Yale Law grad Chad Golder, so the two decided to find an objective measure of judicial activism in order to determine which judges were appropriately labeled as "activists". Since the hallmark of "judicial activism" being identified as "legislating from the bench", Gerwitz & Golder decided to evaluate Supreme Court justices using a measure based on a sitting judge voting to strike down a law enacted by Congress (considered to be the boldest move an activist jugde could make). Their report, published in the NY Times found that 64 Congressional provisions were overturned by SCotUS since 1994. Of those overturned Clarence Thomas, voted to invalidate 65.63% of the time & Antonin Scalia voted to invalidate 56.25% of the time. Scalia, expected to replace Rehnquist as Chief Justice due to his literalist attitude on the US Consititution & Christian Scripture, and Thomas are considered by the Republican party as being the epitome of superb "non-activist" judges. So, how does the rest of the court measure up when it comes to invalidating laws?
  • 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 %
Now one could argue that those at the top of the list are horrible activists for showing disregard to Congressional statutes and the democratic process, or one could argue that Congress has passed an awful lot of shitty & unconstitutional laws that have been challenged since 1994.
To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.
I'm sure the Republican response will be that heinous laws foisted by an unpatriotic and godless liberal Congress were the only ones invalidated by the idealogical conservative justices (and retained by "activist" liberal justices), and that a literal reading of the Consititution is what compelled them to invalidate those laws.

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