Judicial Activism by the Numbers

Let's compile objective information on "Judicial Activism". I'll add more information as I find it (...this is a scrapbook, after all...) but for now, I have two sets of objective numbers:

• Rate of Overturning Legislation
• Overturning Executive Decisions

None of this address whether or when judicial activism is a good or a bad idea; these numbers are just about who does it.

Rate of Overturning Legislation

"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."

--- So Who Are The Activists? by PAUL GEWIRTZ and CHAD GOLDER

Rate of Overturning Executive Decisions

Another study of several thousand cases studied the frequency in which an unelected judge voted to overturn the decision of the elected executive. A high score shows high deference to the elected executive branch; a lower score shows more judicial activism:

Justice Rate of upholding agency decisions

• Breyer 82%
• Souter 77%
• Ginsburg 74%
• Stevens 71%
• O’Connor 68%
• Kennedy 67%
• Rehnquist 64%
• Thomas 54%
• Scalia 52%

--- Judicial Partisanship Awards by Cass Sunstein