The Judicial Activism Myth

Ken AshfordSupreme CourtLeave a Comment

I’m fairly sure I blogged about this before, but it bears repeating in light of the Alito nomination.

A few months ago, the New York Times had an op-ed discussing what "judicial activism" means: it connotes the willingness of a justice to overturn congressional legislation.

Taking this definition as the metric, who are the worst "judicial activists" on the Supreme Court now?  Conventional wisdom (fueled by right wing propaganda) would probably make you think that liberal-leaning justices are the "judicial activists".

Not so.

It turns out that that the conservatives on SCOTUS are more likely to strike down congressional laws, and liberals are more likely to show deference to Congress and let them stand. Here are the numbers since 1994:

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 %

Now, if Alito is (as some say) just as, or more, conservative than those on the present Court, aren’t we getting another "judicial activist"?