Democrats & Liberals Archives

Far-Right Justices are Most Activist

Conservatives have for many years been repeating over and over again that liberal justices are activists who tend to make law while conservative justices - like Thomas and Scalia - interpret the law. I have stated several times that I disagree with this, that it is pure Republican propaganda. Now I have come across a study by legal scholars that seems to indicate that the more conservative the justice the more likely he or she is to be an activist. Far-Right justices are the most activist.

Prof. Paul Gewirtz and Chad Golder of Yale Law School studied this issue. They adopted what they considered to be an objective measure of activism:

"Declaring an act of Congress unconstitutional is the boldest thing a judge can do."

Using this measure they discovered that the percentage of Congressional laws that the 9 justices on the Supreme Court invalidated were as follows:

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 %

The authors agree that there may be other measures of activism. But by this one objective measure, Thomas, the most conservative member of the Court, is the most activist. All the conservatives are more activist than the liberals.

Now, Bush wants to add to the Court Scalito because he will not make the law but interpret it. Nonsense. As a beloved member of the Far-Right, Scalito is likely to be the most activist justice on the Court. If you want a justice who is more likely to interpret the law, pick a liberal like Justice Breyer.

Posted by Paul Siegel at November 1, 2005 6:58 PM