Wednesday, July 13, 2005

The real activists on the Supreme Court

Conservatives who claim privileged allegiance to the Constitution typically accuse liberal judges of being activists, that is, of legislating from the bench. Liberals, they say, make up laws as they go, laws in accordance with their distorted interpretation of the Constitution, and, indeed, with their wholly un-American politics.

But a new study published in the Times -- okay, you're going to want to sit down for this one -- this new study, which defines activism as "[voting] to strike down a law passed by Congress," reveals that "those justices often considered more 'liberal' -- Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens -- vote least frequently to overturn Congressional statutes, while those often labeled 'conservative' vote more frequently to do so". The results, reported by Seeing the Forest (another good blog that cross-links with The Reaction):

  • 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, a different interpretation is that the conservatives (mainly Thomas, Scalia, and Rehnquist) voted to overturn liberal laws that were/are themselves unconstitutional. This would indicate a liberal bias in Congress. Yet Republicans have controlled Congress, more or less, since 1994. Regardless, it's clear that judicial activism is hardly a liberal phenomenon. However, it does seem that conservatives have been successful at creating the impression that it is, and that conservative judges are more, well, conservative, that is, restrained and respectful of Original Intent. Seeing the Forest puts it this way: "[W]hen right-wingers accuse it usually means that is what they are themselves doing."

With one, two, or even three Supreme Court nominations coming soon, we'll see if liberals (and Democrats) can overcome this intentional misdirection with the truth about judicial "conservatism".

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  • Isn't the simplest explanation that conservative judges are more likely to vote against federal laws they see as infringing upon states' rights? I'm not sure if that's really "activism;" Scalia et al. probably regard it simply as federalism.

    By Anonymous Anonymous, at 4:36 PM  

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