It's Republican judges who are the 'Activist Judges"

Clarence 'Pubic Hair' Thomas - The most activist judge in the country Yesterday Karl Rove stuck his ugly head out to see if anyone had forgotten about his act of treason and his pout of the day was 'activist judges'. This is a subject that is totally misconstrued by Republicans because the fact of the matter is, it's Republican judges in this country who are the 'activists". What is it that phony conservatives say that makes an 'activist judge'? They say it's a judge that 'legislates' from the bench. In other words, they do from the bench what legislators are suppose to do. Well, if a judge overturns something that was approved through legislature than that judge would be an activist judge. So guess who is the biggest activist judge in the country? Clarence Thomas. And who is the least activist judge in the country? Stephen Breyer. In fact, the Republicans on the Supreme Court are the most 'activist', while all the 'liberals' on the Supreme Court, are the least 'activist'. As it generally turns out, Republicans and those who support them, have reality completely ass-backwards. You shouldn't be surprised. As you will learn from the study below that was done by a couple of guys from Yale Law, it's once again, Democrats who follow the constitution and Republicans who don't. And please note; the two Supreme Court justices that were selected by Bill Clinton, Breyer and Ruth Bader-Ginsburg, are the LEAST activist! "So Who Are the Activists?" --An Op-Ed by Prof. Paul Gewirtz and Chad Golder (This piece was originally published in the New York Times on July 6, 2005.)

When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees. In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court. 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. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred. Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism. Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented. We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below. 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 % One conclusion our data suggests is that those 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. To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations. Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint. These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these. And please note; the two Supreme Court justices that were selected by Bill Clinton, Bryer and Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.