On the Op-Ed page of the New York Times today, Paul Gewirtz and Chad Golder bring some clarity to the murky term “activist judges,” used so often by those attempting to derail one judicial nomination or another.
Gewirtz, a Yale law professor, and Golder, a recent graduate of Yale Law School, note that the word “activist” is widely-used — usually as a rebuke — but rarely defined. “Often,” they note, “it simply means that the judge makes decisions with which the critic disagrees.” So they came up with their own empirical measurement of the word, as applied to each justice currently on the U.S. Supreme Court. Instead of scoring the judges on how often they affirmed or overturned lower court rulings, Gewirtz and Golder asked a different question: “How often has each justice voted to strike down a law passed by Congress?”
It’s a measure that makes a certain amount of sense; voting to overturn an act of Congress “is the boldest thing a judge can do,” Gewirtz and Golder write. Well, maybe. But there’s no doubt such a vote is something of an “activist” act. As long ago as 1867, the Supreme Court itself described the practice as “an act of great delicacy, and only to be performed where the repugnancy is clear.”
Since 1994 (when the court assumed its current composition), Gewirtz and Golder write, the Supreme Court has upheld or struck down 64 Congressional provisions. The most “activist” judges, as measured by this yardstick: Clarence Thomas, who voted to strike down the laws in question 65.63 percent of the time, and Anthony Kennedy, close behind with a 64.06 percent off-with-their-heads performance. The least activist judges by this measure are Stephen Breyer, who voted to overthrow 28.13 percent of the time, and Ruth Ginsburg, who did so 39.06 percent.
In short, it’s the liberal judges who are most conservative about upending established law, and the conservative judges who are most willing to overturn a Congressional majority by judicial edict.
Keep that in mind the next time you hear someone bandying about the term “activist judges.”
And kudos to Gewirtz and Golder for coming up with a measure that gives the words “activist judges” more than just emotional content.