Law professors Paul Gewirtz and Chad Golder have injected some much needed metrics into the debate over activist judges.
They theorize that the most activist action a judge might undertake is to invalidate a law. The more often judges oppose legislators, the more activist they are.
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 %
Notice the pattern correlating conservatism to activism. As the authors observe, activism isn’t necessarily a negative. Some laws ought to be struck down. A new law is a new expression of government power. Conservatives, in general, oppose more power for government and so conservative justices are more willing to oppose legislation.
The take away message of this whole excercise is the utter meaninglessness of the phrase “activist judge”. We should understand those two words to mean merely “judge I don’t like”.
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