Judicial Activism?

I need to begin this with a disclaimer. I heard this story on NPR’s Morning Edition as I was heading out the door this morning. I did a quick online search for a transcript of the program but couldn’t turn anything up. So I don’t have exact figures or quotes, but there’s an interesting point here.

Anyone who follows the news knows that Republican lawmakers love throwing around the term “judicial activism” to describe what they see as judges moving beyond interpreting the laws and using their power to shape legislation. This charge is almost always leveled at liberal judges. But I heard an interesting fact this morning. According to a recent study conducted by a law professor at Yale, in the past several years the Supreme Court has overturned far more congressional legislation than it used to. Ok, so that seems to reinforce the conservative position that judicial activism is on the rise. Here’s the interesting part though. The Justice who voted most frequently to uphold congressional legislation: Stephen Breyer, one of the Court’s liberal flag bearers. And the Justice who voted most frequently to overturn legislation: Clarence Thomas, a staunch conservative and the man in whose image Bush said he would nominate future Justices.

So maybe the Republicans are right. Maybe we do have a problem with judicial activism. But if that’s the case, liberal judges aren’t necessarily the ones to blame.

--Matthew McCoy