Wednesday, July 06, 2005

Who's an activist?

The New York Times has an excellent Op/Ed piece today from a Yale law school Professor and a recent Yale law grad that took a unique approach to the issue of "judicial activism". The problem that most serious students of the law, on both the left and the right, have with the cries of judicial activism is that there is no clear cut definition of what an "activist" decision is.... indeed the entire concept is very amorphous, even those who are staunchly advocate the removal of "activist" judges often have a tough time defining judicial activism.

Frankly I find the entire argument to be a bit ridiculous and become highly suspect of anyone who relies on judicial activism arguments. Rarely can they support their position with any sort of facts or insight, instead they disagree with a court's opinion and immediatley label it as activist. I just find the entire thing to be intellectually lazy, and I have little tolerance for that.

The NY Times piece attempts to assign some sort of normative measurement stick to the term activist.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Now the fascinating part, look who are the most activist judges on the Supreme Court....

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 %

Great article, nicely done Professor Gerwitz and Mr. Golder!


At 12:37 PM, Anonymous Anonymous said...

This is a great article. I'd presume the GOP will treat it as they treat any other science that doesn't support their position.

Unfortunately, it was published in the archetypal "liberal media" newspaper, and will be disregarded as such by a large segment of the population.


At 12:44 PM, Anonymous Anonymous said...

Little more... the thing I liked the best was how the article took the words said by people such as Tom DeLay: "judges that subvert the will of the people as expressed through the legislature" - and used that as their operationalizational definition for "activism" ; absolutely discredits DeLay's statements, to a T...

I presume DeLay would rally around a nominee that was not subverting the legislature, ala Ginsberg & Breyer?

~Pfife again

At 3:10 PM, Blogger YellowDogDem said...

I think it's definitely an interesting way to look at the issue. I don't know that I've ever seen anyone try and actually define "judicial activism" before... it was like the old Supreme Court line about obscenity, I know it when I see it


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