July 6, 2005

Who's the real activist?

Paul Gewirtz and Chad Golder have a study in today's Times that attempts to quantify judicial activism by the Supreme Court since 1994. Their measure is simple, if a little primitive: find the number of Congressional laws each justice has struck down as a percentage of his or her total number of decisions on Congressional laws. Here's what they found:

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 %

Surprise! The cons are the activists!

The obvious methodological complication would seem to be that the study doesn't characterize or quantify the Congressional laws being deliberated by the Court. Were they passed by a Democratic or Republican Congress? And when were they passed? For laws passed long ago the whole Democratic/Republican value wouldn't mean much, since the parties shifted so much in the 60s and 70s. Basically, data with the distribution of the laws across the Congressional sessions in which they were passed and the Democratic/Republican composition of each session would make the study more precise.

But, as is, the findings still suggest the conage of "(liberal) judicial activists" to be as meaningless and misleading as most of their Orwellian bullshit.


  1. Right... the cons are the activists.

    You seem to acknowledge that your own statement is bullshit with your reference to an "obvious methodological complication," and yet you make your statement with an exclamation point....

    Do you even know how the Supreme Court works? Would you like a clue?

    The Supreme Court gets about 3000 cert petitions per year, yet they decide less than 100 cases every year. They cherry pick the cases that they want to decide. With a 5-4 roughly conservative majority on the court, the cases involving laws that the conservatives want overturned are more likely to make it to the Supremes because they know that they have the votes to get it done. If Breyer wants to overturn a law, however, he's better off picking his battles and voting to grant cert on the cases where he thinks his side will prevail. Otherwise, you get a binding 5-4 precedent against you. Selection bias probably explains most of it. A more useful study would have looked at the federal appellate courts, which have no control over their dockets, but that probably would have required too much work.

    The politics behind the laws probably wouldn't help much, especially since there have been a lot of laws recently that split the court along strange lines (Booker, Blakely, Apprendi, Raich) What would be more interesting is how much overlap there is in these decisions. Ordinary math shows that at least 7.82% of the laws that showed up on the Supreme Court's doorstep were unconstitutional according to both Thomas and Souter. With all of the 9-0 decisions out there, the number is probably much higher.

    Simplistic, knee-jerk commentary like yours is one of the reasons why the impending Supreme Court nomination is going to be so ugly.

  2. TO, your explanation of the way in which the SCOTUS functions is correct, but it doesn't negate the impact of this (admittedly simplistic) study. The cons are the ones always throwing around the term "activist." This undercuts their credibility. I don't believe that the ambitions of Chris' post went beyond doing so.

  3. Thanks TO for the U.S. Government AP lecture on Supreme Court basics. I took that class, too.

    You raise a worthwhile point about the self-selection. But that doesn't explain all of it and I think you leave out some important facts that fall within the general scope of your explanation but against your particular explanation.

    When the Court picks a case, it (the majority)'s not necessarily picking one in which a lower court has ruled in favor of a Congressional law that it (the majority) wants overturned.
    The cases also include ones in which lower courts effectively ignore a Congressional law or rule against it, where the Supreme Court wants to see that law upheld. Right? I don't know the numbers for the frequency of each kind of case and it might be hard to quantify, and there are probably legal terms for what I'm talking about, but this seems like an important distinction you totally leave out. Perhaps, as the expert, you could enlighten me.

    So the study in the NYT shows that the cons in this Court overturn Congressional laws and the supposed "will of the people" all of the time.

    Another way of putting it: a liberal Supreme Court would also select the cases its liberal majority wanted, but it wouldn't have to select and rule in such a way as to overturn legislation all the time.

    Thus, the study still seems to me a decent measure of a sort of pure activism.

  4. Also, you completely ignore the historical context given in the introduction of the story about the study. How do you account for the significant rise in cases overturned per year since 1994? The history validates my point about how a liberal Court might not be, and in fact WAS NOT, as activist vis-a-vis the will of Congress as the cons now on the bench.

  5. Wow, that was pointless. TO, did you read the subject line and ignore the body of the post? The whole idea of Chris's post was to acknowledge the potentially interesting findings and also to discuss their shortcomings, more open-minded than most such discussions. In fact, knee-jerk reactions like yours (READ! ALL YOU PEOPLE HAVE TO DO IS READ BEFORE REACTING!) are the problem.

  6. Anonymous8:21 PM

    There's also the fact that the study only looks at Federal laws, which is odd. It can be far more activist for judges on either side to overturn a state law than for them to overturn a federal one, as overturning a state law could involve questions of federalism, which again relates to the conservative/liberal sides. If either side were to trample on state's rights, that would be very activist - but that side is completely ignored by the study.