Wednesday, July 06, 2005

Activist Judges

I understand this is a bit off topic - and a bit late - but I just finished reading this op-ed from NY Times and thought it would be useful for everyone to know.

Onto the op-ed. The article describes an activist judge this way:

"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."

"...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."


Apparently, since the Supreme Court took its current composition of nine judges in '94, the court has upheld or struck down 64 congressional provisions - legislations concerning Social Security, church and state, campaign finance, etc..

Then the article neatly presents the statistics for each justice's voting records for these 64 legislations. Justice Clarence Thomas voted to invalidate ~66% of these 64 provisions (the most activist, according to the op-ed) and Justice Stephen Breyer voted against for 28% the legislations (the least activist).

See the op-ed for full tally. (NY Times requires registration. You may use this combination of user id: bugmenot456 and password: nobugging )

The conclusion is: "...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 article also admits "To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper".

2 Comments:

Blogger Kevin said...

George, this is more than a little off-topic for the current book, but since it meshes with the last one ok, I guess you can get away with it.

I completely disagree with the New York Times definition of activist judges. It represents the typical liberal misunderstanding of how a constitutional republic (the USA is not a democracy) is supposed to be run. Because judges are NOT elected they have accountability to the Constitution and to the Constitution alone. It is "activist" to support laws that have no basis in the Constitution regardless of whether Congress made the laws or some other activist judge.

I was glad to hear that the NYT author at least admitted that sometimes Congress does step outside of Constitutional bounds and that the court is acting responsibly in restraining them. I'd like to know who is restraining the judges who are rampantly legislating unconstitutionally from their benches?

July 07, 2005 6:36 AM  
Blogger John Otter said...

I disagree with the definition as well. It seems the op-ed is simply trying to justify the decisions of liberal judges. It can't be simplified to a simple statistic of upholding or invalidating a congessional provison. By that definition, in order to not be labeled activist, a judge must uphold everything Congress passes.(and sticking that little paragraph at the end doens't change the true intent of the piece.)

Congress does make mistakes and does contradict itself and the constitution and that is why we have a supreme court.

This article was simply a liberal trying to justify the actions of those who change the constitution from the bench rather than legally through Congress.

The conservative judges strike down so much because they are originalists and are trying to prevent Congress from destroying (by adding to uneccessarily) a purposefully and carefully written document.

July 11, 2005 11:05 PM  

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