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Wednesday, July 06, 2005

An Activist By Any Name?

Very interesting op-ed in today's NYT (by Paul Gewirtz and Chad Golder) about judicial "activism" on the current Supreme Court. The authors use frequency of voting to strike down a Federal law as one possible measure of activism (they note that there are certainly others).

So who's the most activist using this measure since the current court took form in 1994? That's right: Clarence Thomas, followed by Kennedy, Scalia, Rehnquist, O'Connor, Souter, Stevens, Ginsburg, and Breyer, in that order. The top-to-bottom spread is huge: Thomas voted to strike down Federal laws in 65.63% of the 64 cases, Breyer just 28.13%.

Now, the Federal-law measure of activism will show only one side of the coin. Much conflict on the current Court has concerned federalism, the balance between Federal authority and State independence. The Court's right wing has been extremely activist in striking down Federal laws that burden states, while the Court's left has been much more deferential on this issue. I would guess that many of the Federal laws that the right voted to strike down involved these sorts of issues. For a truly fascinating discussion of the Court's recent federalism jurisprudence, get a copy of the truly readable Narrowing the Nation's Power, by John Noonan.

Noonan is a Federal judge on the 9th Circuit Court of Appeals, and he is known as a conservative. His book shows disbelief at the activism of the Court's right wing. (One particularly interesting issue is the repeated reliance on common law, especially by Justice Thomas, in justifying claims that find no support in the text of the Constitution -- indeed, the Court's recent "Eleventh Amendment" jurisprudence is actually quite contrary to the text of the amendment. Reliance on English common law is a neat trick for those justices who have so vehemently opposed the use of international comparisons in establishing what the Eighth Amendment's prohibition of "cruel and unusual" punishment should and shouldn't allow.) I had the good luck to see Noonan give a discussion of this book in a faculty member's Berkeley living room back in 2003, and I was very impressed with Noonan's clear notions of legal principle.

Anyhow, I'd bet that if Gewirtz and Golder re-did their analysis, with votes to strike down state laws as the measure of activism, their ranking would be largely reversed.

I'm not a lawyer, and I don't know which view is correct -- or even if there is a correct view. But this sort of stuff shows you that one person's "activist" is another person's "conservative", and vice-versa.

Keep that in mind over the next couple months.


Anonymous George Lovell said...

In addition to Noonan's excellent book, I also recommend "The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism" by Thomas M. Keck, which has better indicators of this court's activism than votes against federal statutes, as well as other good things.

The biggest myth about the conservatives on the Rehnquist Court is that they are originalists. They don't even pretend to be originalists in some of the most controversial areas they are doing work- e.g., affirmative action, Section 5 of the 14th Amendment, 11th amendment, Bush v Gore, etc. They are only originalists when it helps, just like everyone else.

7/06/2005 12:04 PM  
Blogger Jonah B. Gelbach said...

these are very good points.

7/06/2005 2:43 PM  
Anonymous Jesse Rothstein said...

Could you figure out how they computed the numbers in the NYT op-ed? As I read it, they have 64 Congressional provisions that the court either upheld or struck down. So each justice's score should be a multiple of 1/64. How can O'Connor and Rehnquist be only 0.11% apart?

7/06/2005 3:23 PM  

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