Judicial Activism

Whenever you hear some right wing nutjob news person claim that Liberal judges are Judicial Activists, legislating from the bench, and/or sric tconstructionists/ originalists. Please or pretty please point them to this editorial in the NYTimes.

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. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

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 %

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.

(hat tip atrios)

Now if only these gentleman could compile the same statistics for Soon to be justice Sam Alito. And yes fellow liberals, I have zero faith that this man will not wind up on the bench. Unfortunately, as John McCain has said rather recently, elections do have consequences. Unfortunately, our leaders who run our side of the elections fail to make this statement operative in the minds of 62,040,606 people.

I believe our worse fears as liberals occured yesterday. With John McCain now threatening to get the "gang of 14" centrists together to avoid a showdown over this nominee, I do think this guy will wind up on the court.

So yell, scream, unless you find this guy claiming the constitution as quaint and irrelevant, I doubt we will make inroads here. Call me a nihilist. I subscribe to Katherine Vanden Heuvel's statements she made last night on NPR. Democrats need to opose this guy starting now, they shouldnt be talking about let's see what happens at the hearing type of shit. They should be opposed in lockstep, all together now, like the party they claim to be. For if they don't, they will be complicent in the undermining of personal uterine control.