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Activist Justices?

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I thought this was intriguing, especially the statistics about the statutes overturned by the Court since 1994.


So Who Are the Activists?





Published: July 6, 2005

Correction Appended


New Haven


WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.



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?


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.


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. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.


Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.


These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.




Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.


Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.

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pssh, how could you not know it started in 1790?? :headshake

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He is wrong. Activism is not a measure of how often a justice declares a congressional law unconstitutional. Interpreting the law is what a justices job is & that applies at all levels. Laws are a by-product of special interest groups who may or may not care about the constitutionality of something they lobby Congress for. As we have matured as a nation these SPIG's have grown more wealthy & more influential so it's not unrealistic to expect more unconstitutional laws as we go forward.


Judicial activism occurs when justices transform their job from interpreters to regulators. As such they legislate judicial guidelines to be used as a form of regulating judicial cases. Roe v Wade & the establishment of the Lemon Test are perfect examples of what judicial activism is. Both essentially established guidelines to govern all such judicial cases that had a weakly defined at best link to actual constitutional law. They would be anything but strict interpretations.


Whether a justice is liberal or conservative has little to do with the quantity

of his/her decisions. It has everything to do with the quality of those decisions. You essentially rate each justices decision on a scale of 1-10 in terms of how it's associate to constitutional law: 10 represents a direct reference to constitution law in supporting an interpretation & 1 represents the weakest inference to constitutional law in supporting an interpretation.

Where most of the justice's decisions lie on that scale determines whether they are a conservative or liberal justice.


I suspect these two men know this & a failure to articulate means they are hiding the truth to make a biased point.

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Or maybe the point that was being made is simply that the term is being thrown around with multiple definitions... and either side could very well be seen as activist.

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Sadly, buried within that last long block of text is the exact problem with Judicial Activism as an idea; no one can give a strict definition of what it is. By applying numbers on a wierd 1-10 scale, our friend seems to think he can set some sort of arbitrary standard for what rulings violate the constitution and what don't.


The problem of course is obvious; who holds the scale? Who decides whether or not something falls at a 10 or a 2? Clearly, it is the viewer. There is no arbitrary standard by which one can judge activism or constitutionality.


If you want to see the best discussion i've ever been a party to on this question...check out the comments on this discussion.


Judge Janice Rogers Brown, who recently became an appeals court justice, took a case on 1 issue and tried to use it as an opportunity to use her own beliefs to overturn a completely different statute. Is that judicial activism? President Bush went to court to try to get a judge to ban 527 ads, when he signed a bill which specifically did not ban those ads. Is that judicial activism?


The fact is...the only definition of this topic out there is the "I'll know it when I see it" activism.

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QUOTE(JUGGERNAUT @ Jul 7, 2005 -> 10:30 AM)
Judicial activism occurs when justices transform their job from interpreters to regulators.  As such they legislate judicial guidelines to be used as a form of regulating judicial cases.  Roe v Wade & the establishment of the Lemon Test are perfect examples of what judicial activism is.  Both essentially established guidelines to govern all such judicial cases that had a weakly defined at best link to actual constitutional law.  They would be anything but strict interpretations.



Hmm... I agree that Juggernaut's understanding of "judicial activism" is more accurate that of the original article (which I agree is really a fairly flimsy piece of legal writing). In principle, judicial activism is indeed when the judge steps out of his role as a neutral factfinder and inserts his own ideology as governing law.


That said, Juggernaut's examples are slanted to a conservative opinion. Many (if not most) middle of the road jurists do see at least some constitutional foundation for Roe, Griswold, and many of the so-called "activist opinions". I'll lay out my problems with Juggernaut's statements below:


1) The Ninth Amendment - The Ninth Amendment provides that U.S. Citizens retain other rights not currently stated in the Constitution. To the founding founders, this was logical and, in fact, necessary. It is too difficult for Congress to establish all the rights neccessary to protect all citizens in every possible situation.


The 9th Amendment provides flexibility for the courts to decide where the rights of individuals need protection. The conservatives who scorn "judicial activism" generally ignore the elasticity provided in the actual language of the constitution.


The conservative movement against so-called "judicial activism" is led by those who "strict constructionalists" who follow only the exact wording of the Constitutation. Liberal legal commentators have often pointed out that the irony of "strict constructionalists" is that they overlook an entire amendment of the constitution.


2) Roe v. Wade - In keeping with the elastic nature of the 9th Amendment, the Supreme Court in 1965 decided one of the three most important cases in history; Griswold v. Connecticut (along with Brown v. Board and Marbury v. Madison). In Griswold, the Court struck down a Connecticut law that forbid couples from purchasing contraceptives and birth control. The court held that individuals had the right to practice safe sex and to control whether or not they became pregnant. The court basically held that each person has the inherent right to protect themselves from disease or pregnancy if they so chose. In light of the dire, life-changing effect of the the law upon individuals people, there was no compelling governmental interest in forbidding the sale of contraceptives.


After Griswold, the court has decided a few more of these 9th Amendment penumbra cases.... one of which is Roe v. Wade. Roe of course holding that a woman had the right to control her own body.


In 1992, the Supreme Court altered Roe a great deal. In Casey v. Planned Parenthood, the court held that a woman's right to an abortion ended when the fetus became viable. At the point of viability, the fetus itself had a 9th amendment right to life, and was then protected by the Constitution.


How you feel about Roe, and when life begins, is a very personal decision. I don't wish to demean pro-choicers or pro-lifers.... My point is writing this thing is not to convince anyone which side is right or wrong. I am just hoping to provide some education on the issue of Roe's legal ties to the US Constitution.



3) Lemon v. Kurtzman - Generally, the Lemon test was founded in the Establishment Clause of the first amendment.... mandating the separation of church and state.


The Lemon test is now basically irrelevant... The Lemon Test was a product of the Burger court in 1971 and has largely been destroyed by the 1995 case Rosenberg v. University of Virginia. The test used in Lemon was bulky and was very difficult to apply evenly across numerous cases... As a result the Lemon test was abandoned. In fact, if the Supreme Court recognized Lemon today, it almost certainly would have struck down Bush's "faith-based initatives." The last gasp of breath for the Lemon Test came just two weeks ago, when the court upheld a display of the 10 commandments at the courthouse in Austin TX. The court uniformally ignored the opinion and has replaced it with a new doctrine that Permits a limted mixing of church and state so long as the government does not advance one religion or another.


I hope this helps clear up any ambiguity in the phrase "judicial activism." The truth comes neither from the conservatives nor the liberals. To some extent, judges have to use their best judgment under the 9th amendment to protect the rights of citizens. At the same time, its entirely disingenuous to disavow any protections of the 9th amendment as "activist" and outside the scope of the constitution.

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To some extent, judges have to use their best judgment under the 9th amendment to protect the rights of citizens.  At the same time, its entirely disingenuous to disavow any protections of the 9th amendment as "activist" and outside the scope of the constitution.


You are correct sir which is why I mentioned the 1-10 scale. It's a good exercise for any legal scholar to look at past USSC decisions & decide where on the scale they fall.

Strict constitutionalists would probably demand a decision be no less than 8. These people are rare. Judicial conservatives probably seek a decision be no less than 6.

Judical liberals probably seek a decision be no less than 4. And anything below 4 would be considered an activist decision.


Rating the decisions you mentioned:

Griswold v. Connecticut: 9. Arguably the most liberal co-signer Benjamin Franklin believed that the US Constitution & subsequent Bill of Rights where a great impingement on personal liberty. Privacy would be considered nearly beyond reproach. As the right to personhood, some believe it begins at conception, others believe it begins after full birth, & the rest of us are somewhere in the middle. When you consider which pov impinges on liberty the most it's clear that the founders will fall someone in the middle.


Roe v. Wade: 3. In keeping with the belief that most of us believe personhood begins at some point between conception & full birth the court should have rendered a decision that supported a woman's right to an abortion prior to the establishment of personhood & that the establishment of personhood should be defined in lieu of an act of Congress to state laws. Such a decision would have rendered an 8.


Thus Roe v Wade would still have established a woman's right to an abortion but left the regulation of that right to congress & the states.


Blackmun did not do that. Instead he defined regulation that would establish from court's perspective when personhood begins. He did leave open the possibility that progress could redefine that point but he did not provide a procedure by which that point could be challenged. That is why it's considered a grossly activist decision.


Congressional law is expected to be fluid & an adaptable to change as a result of progress. Judicial decisions are not. When any decision approaches that possibility the matter should be deferred to Congress & the states.


It is likely that if the USSC at the time had rendered a proper decision Congress would have soon thereafter passed a law outlawing abortion beyond the establishment of personhood. Congress would further have defined the establishment of personhood based on debating the findings from medical research at the time. I further believe any challenge to such a law brought before the USSC would have been ignored.


Simply put, abortion would not be anywhere near the divisive issue it is today.


On the issue today the latest USSC ruling declared the partial birth abortion ban law unconstitutional on the grounds that it placed the life of the baby above the health of the woman. Upon close observation of the law there are exceptions relating to the personal health of a woman but little in reference to her psychological health. This latest decision basically approved abortion on demand as it exists in the nation today.


The next decision pending before the court deals with parental notification rights & the right for states to outlaw abortion until notification has been given. Obviously this issue deals with abortion rights of minors.


Lemon v. Kurtzman: 3. Benjamin Franklin advocated the need for their to be a separation of church & state on the basis that in his opinion morality was not only relative but extremely difficult to live up to. His virtues are well known as is his attempt to live by them. Yet Benjamin Franklin not only recognized religion in his own life but it's important in politics in general. Indeed he would join a congregation

outside of his own faith to gain political clout amongst the voters & politicians.


If not for Benjamin Franklin we would likely not have a separation of church & state clause in the first amendment. Considering that Franklin himself did not trust the US Cons in terms of how it impinged on personal liberty it's both rational & logical to believe that he did not feel it should go as far as to suggest a mandate of atheism or agnosticism in the state.


Again the court should have rendered a decision that supported the separation of church & state but that the demarcation for the two should be defined in lieu of an act of Congress to state laws. Such a decision would have rendered an 10.


When the USSC defers a matter to Congress & the states they are expecting Congress to debate the issue & come to a consensus asap. Such a decision would have likely led to a congressional act establishing something like the Lemon Test but reaching well beyond the classroom. Such an act would have governed the court rooms, nativity scenes, etc.


Once again the separation of Church & State would not be anywhere near the divisive issue it is today.


The most recent USSC does not impinge on the Lemon Test because it has no relation to school prayer, religious instruction, or a voucher system including private parochial schools as an education choice. The most recent ruling deals strictly with matter pertaining to religious symbols/displays as they relate to traditions.


There are three parts to the decision:

1) Declared that a test is not possible & that each case must be deliberated separately. Essentially it deferred the matter to Congress & the states.

That rates a 10.


2) KC decision - overturned an appelate courts decision that ruled the courtroom display was constitutional.

This rates a 4.

3) Austin decision - supported an appelate courts decision that ruled the Austin display was constitutional.

This rates a 3.


The irony is that the Austin display went much further than the KC display because it included actual scriptual references from the Bible.


As for the much bigger issues of separation of church & state more recent cases have more do to with Muslim traditionists, discrimination of workers on the basis or their moral values, & vouchers.



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“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."


A strict constitutionalists interprets the establishment of religion as an entity officially recognized as a religious institution by the state. A church, a group, a charity, etc. Something that is officially registered as a religion for tax free status.


Everything ever said or written by the authors pertaining to this clause supports that interpretation.


A liberal constitutionalist interprets the establishment of religion to mean spirituality in general. The establishment clause basically means separation of spirituality & state.


Organizations like the AU, & ACLU have spent vast amount of time & money in deliberating cases that essentially prohibit the free exercise of spirituality on public grounds. Though they masquerade in the guise of supporting religious freedoms they have little history in deliberating such cases.


Nothing has really changed since the Lemon Test. The standard still remains that symbols, customs, & traditions suporting spirituality on government or public grounds is forbidden & the burden of proof lies on the local governments to prove they don't violate the establishment clause.


The most recent cases pertaining to vouchers are:

02/25/2004 USSC Locke v Davey - Washington State is allowed to deny scholarship funds to students on the basis of disciminating against those studying theology.


2000 USSC ruled that the US Cons allows religious schools to participate in "neutral" voucher programs that offer a "genuine choice among options, public and private, secular and religious."


The impact of the Locke v Davey decision is that on the matters of vouchers state law is the law of the land.


Renhquist wrote: "There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause."


This is a liberal interpretation as it favors the establishment clause over the free exercise clause.


Scalia wrote: "One can concede the Framers' hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers would have barred ministers from using public roads on their way to church."


This is a conservative interpretation as it favors the free exercise clause over the establishment clause.


However the court did narrow the scope of it's decision:

Rehnquist: "Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion."


What this suggests is that the court favored Washington State on the basis that tuition in support of theology equated to taxpayer funds supporting church leaders. Perhaps they found evidence in which part of the tuition funded a clergy member. That seems to open the door that if can be proven that voucher funds do not support members of the clergy the USSC would consider any such law denying such funds unconstitutional. That could be easily managed by theological based universities declaring that all members of clegy working/teaching in such schools are unpaid volunteers.

The funding of such church workers would be isolated to donations.


On issues relating to the Establishment Clause & Free Exercise Clause it appears the USSC breaks down as follows:

pro-spirituality: Scalia, Thomas

moderate-spirituality: Rehnquist, O'Connor, Breyer

moderate-atheism: Kennedy

pro-atheism: Souter, Ginsberg, Stevens


The odd's are in Bush's favor to stack the court towards favoring the Free Exercise Clause over the Establishment Clause.

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