Yale law professor Paul Gewirtz and recent graduate Chad Golder pick an odd yardstick for Supreme Court activism (registration required) but you?ll understand why when you see the results.
Here is the question we asked: How often has each justice voted to
strike down a law passed by Congress?
Declaring an act of Congress unconstitutional is the boldest thing a
judge can do. That’s because Congress, as an elected legislative body
representing the entire nation, makes decisions that can be presumed to
possess a high degree of democratic legitimacy.
You may be asking yourself what makes Congress more democratically
legitimate than Kansas or even New London, Connecticut. Maybe it?s the
statist tendencies of Congressional legislation.
Naturally, they find, ?[T]hose justices often considered more ?liberal?
– Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul
Stevens – vote least frequently to overturn Congressional statutes,
while those often labeled ?conservative? vote more frequently to do so.
At least by this measure (others are possible, of course), the latter
group is the most activist.?
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 %
As George Leef noted here last week, the Stevens wing aren?t liberals, they?re statists.
