Tuesday, November 01, 2005

"Judgifying I don't like"

Other things that everyone should see.
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 %

Now, willingness to strike down congressional laws may not be a perfect measurement of “judicial activism”. But I really can’t think of any other objective measurement.

Conservative complaints about judicial activism are simply a combination of anti-lawyer prejudice, and focus on a few very controversial issues. Now I don’t feel Thomas, Scalia, and Kennedy are necessarily bad judges just because they are the most active, but they are far from the most humble or restrained.

This probably isn't news to many of my readers, but it is news to a lot of middle-America, and should be spread as widely as possible. I really would like to see Democratic talking heads repeatedly using the phrase "Thomas is the most activist judge on the bench".


At 2:44 PM, Blogger Dennis said...

I'm tempted to characterize what you've described as the "expansive" metric for judicial activism; I might give the non-expansive form as "Supreme Court precedents overturned." After all, the Republican congress regularly passes abortion restrictions which do not include a health of the mother exception in the full knowledge that they'll get struck down by the courts for this reason. I would hesitate to claim that a judge who struck down such a law was being activist, since the precedent is already established. I believe that the liberals restrained, conservatives not breakdown still obtains with regard to the non-expansive metric, but it does make sense to offer the alternate definition.

At 8:04 AM, Blogger Rousseau said...

the SCOTUS's willingness to say they aren't overturning a precedent when they very well are just because they can fudge it
that the non-expansive measure would ignore any new uses of judicial review
how much easier it is to explain expansive definition to the layman
that I have data for the expansive ATM
that's the definition I'll use.

But yes, you make a good point. I guess the difference is, and we've clashed before on this, that if you don't assume "judicial activism" is bad, I am more comfortable using measurements that could include good predictable and reasonable actions, and don't have to find a set of activities that are more clearly malicious.


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