Wednesday, July 06, 2005


You know how Republicans are always bitching about "activist judges?" Well Paul Gerwitz and Chad Golder at the New York Times conducted a little study. They defined judicial activism thusly:

How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.
Anyone care to guess what they found? Anyone? Anyone?
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 %

One conclusion our data suggests is 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. At least by this measure (others are possible, of course), the latter group is the most activist.
So, apparently being an "activist judge" is only bad if he/she rules against whatever the religious right wants (a gay marriage ban, for instance, or displaying religious symbols on government property). Letting the laws passed by the duly elected representatives in the legislative branch of government stand, now THAT'S inexcusable! Tom Delay will have his armed friends out after you soon!
*What Would Long Dong Silver Do?

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