Who are the Real “Activists”?

I absolutely agree with the premise of this article, that if we are going to define a judge’s decisions as activist, it should be based on the numbers of times the judge went against the laws designed by congress and signed into law by the president.  It certainly should not be based on the holdings in certain cases.  Most people on both sides of the fence have no idea what goes into a judicial decision and make the assumption that a judge is activist just because they don’t like the result in a case without really having any idea what the core issue was or how the ruling was reached.  They just pick the party they like and if that party doesn’t win, call the result activism.  This article argues from a more coherent, critical thinking perspective.

The link to this article can be found here.

July 6, 2005
So Who Are the Activists?
By PAUL GEWIRTZ and CHAD GOLDER

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.

Correction

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.

David and Goliath (the time when Goliath squashed David)

I get these political emails in my inbox urging me to take various political actions on a variety of causes.  One informative piece I received this morning informed me that China trades with Sudan, that wretched African dictatorship turning millions of refugees out to fend for themselves amid violence and chaos.  The email sender urges me to contact Congress, along with thousands of others, and get it to send China a message that it should not trade with bad Sudan.

Come on.  Seriously.  Do they honestly think Congress is going to give a rat’s ass that China is trading with Sudan?  Do they honestly think our petition is going to get anyone in Congress to care?  Even if we didn’t have Iraq going on, even if we didn’t have troops in Afghanastan, even if the economy wasn’t in the tank, even if we weren’t facing a mortgage crisis, even if Americans had healthcare, even if everything at home were perfect, I sincerely doubt that Congress would care one iota that China trades with Sudan, at least not in any way that is going to jeopardize our cozy little monetary relationship.  Money makes the world go round, honey, whether anyone likes it or not.  The people concerned mostly with money run this country and probably every other country in the world.  We do business with China so too bad for the Sudanese if they do business with China too.

Then of course there is the problem that China isn’t going to give a rat’s ass either even if Congress sent them a nice, stern message.  Naughty China!  Stop doing business with human rights abusers!  Oh.  But wait.  China is a human rights abuser too.  Dang.  We couldn’t get China to stop its own human rights abuses.  It’s not a big step to conclude China wouldn’t give one damn about Sudan’s human rights abuses either.  Who knows?  China and Sudan may even trade notes.  And realistically, we’re not going to do anything.  Hey China!  You’re naughty!  Stop killing priests and monks and everyone else in Tibet or we’ll get really, really upset with you!  Oh, and can we set up a few more Walmart warehouses over there, maybe a few more in Beijing?  And hey, why don’t we set some up near the Mongolian border too?  Perhaps we can sell Panda paws or something for virility.

Yes.  I know.  I’m sarcastic and cynical and all that.  But seriously, why don’t the activists who want me to get involved ask me to do something that isn’t going to be not only a huge waste of time, but a big damn joke as well?  Congress doesn’t give a shit that Sudan commits human rights abuses any more than China does.  I’m sure if you asked each Congress person individually if they were bothered by the human rights abuses they would probably say they are.  But I seriously doubt many of them are going to do anything about it, especially with the other previously-mentioned big messes the US has to deal with and even more especially considering all of the money we owe China.

The problem with sending email after email after email and letter after letter after letter telling me about all these world problems and asking me to take steps that aren’t going to do one damn thing and may even work against the cause because no one will take them seriously is that it creates a sort of numbness to the constant barrage.  There are a couple of organizations I belong to and to whom I give a bit of money from time to time.  On occasion I will send a letter to the editor on an issue about which they have kept me informed.  I’ve even called my Congress members when a vote is imminent.  These are things I can do. These are steps that might add to the masses who want something to actually change.  But signing some petition asking Congress to stop trading with China because of human rights abuses in Sudan is not only a waste of time, it’s likely to be perceived as a pathetic effort and possibly cause people to stop paying attention when something could actually be done.

That’s my soapbox for the day.