Adam Liptak is generally an excellent reporter on the Supreme Court and judicial matters, but I think this recent article entitled “How Activist Is the Supreme Court?” asks a completely wrongheaded question. It does so because both left and right, as he notes, have begun to use the phrase “judicial activism” to criticize their opponents.
JUSTICES Antonin Scalia and Ruth Bader Ginsburg are ideological antagonists on the Supreme Court, but they agree on one thing. Their court is guilty of judicial activism.
“If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other.”
But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.
Unlike most accusations of “judicial activism,” the one Liptak uses — the frequency with which a court strikes down laws — is at least coherent and objective. The problem is that this coherent and objective measurement is also completely irrelevant to the only question that really matters: Did the court get it right? Whether the court strikes down no laws in a year or ten laws in a year tells us absolutely nothing of any importance. An “activist” court in this sense is neither a good or bad thing in the abstract, it can only be meaningful in relation to the actual cases they heard and the rulings they made.
I have a very old post, from 2006, about the emptiness of “judicial activism,” which I think I’ll repost here soon.