NY Times Asks Wrong Question About Supreme Court

NY Times Asks Wrong Question About Supreme Court October 22, 2013

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.

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  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    … the only question that really matters: Did the court get it right?


    Right in what way and by what criteria?

    Ethically right? Legally (technically) right? Politically right?

    What’s “right” and who gets to say? What meaning does that word really have?

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    FWIW, I’ like to see courts priorities be :

    Justice not letter of law,

    Accuracy in the broader sense not weaselly loopholes

    Victims of crimes and society over criminal perpetrators of crime.

    I’d like less and more reasonable laws being better enforced with sentences meaning at least what they say and time added for bad behaviour not subtracted for good.

    I’d like people protected, victims given closure and security and criminals deterred and punished and made responsible for their actions not allowed to wriggle away from them and blame others for their own choices.

    I’d like crime defined as that which does actual harm or seriously threatens to do harm to others and “victimless crimes” made null and void by the lack of victim. IOW, “If it neither picks someone’s pocket nor breaks their bones” (Mark Twain, correct?) then it ain’t no crime.

    (Well, usually – attempts to pick pockets / break bones = crimes too & other things depending on specifics.But in general, i.e. abortion, euthanasia, taking drugs, blasphemy – NOT criminal etc..)

    I’d like a whole lot of legal and judicial reforms and changes and not so much activism as getting things right as I and many others see it.

    I’d like justice done – fairly, reasonably and with mercy when appropriate but with victims prioritised as first and most important, then society then the crims – and seen and known to be done.

    But, fuck, who am I to Judge?

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    PS. One more key point, IMHON – justice should be delivered quickly not become a drawn out agony with too many delays, excess appeals, constant crap instead of getting on and seeing it sorted out. There shouldn’t be too many delays and time wasting.

    Plus fines and suchlike penalties need to be percentages NOT set figures so that they hurt the rich equally to the poor and deter big Corporations as much as paupers.

    I’d even go as far as suggesting law enforcers should be encouraged perhaps by 10% commission of fines to go after bigger crooks incl. Corporates not smaller ones. The law enforcers should also be given the powers and discretion required to do what they need to do to catch the bad guys.

    Criminals who attack particularly vulnerable targets (children, the elderly, disabled, etc ..) should get a harsher treatment than those who pick on their own size for their cowardice and for each repeated offence the penalty should be doubled. Those who game the system or try to should also get extra penalty and all lawyers should be appointed on basis of need not who is richer and be public servants not private companies sold out to highest bidder.

  • colnago80

    Re StevoR @ #2

    “If it neither picks someone’s pocket nor breaks their bones”

    Actually Thomas Jefferson.

  • BubbaRich

    Yeah, I want to know what you mean by “get it right,” too. It sounds like an argument I have with people who say that the ACA is REALLY unconstitutional, but the SCOTUS just got it wrong. I usually point out that the SCOTUS is a DEFINITION of “Constitutional.”

  • abb3w

    @1, StevoR:

    What’s “right” and who gets to say? What meaning does that word really have?

    I can dredge out the Hume for that discussion, if you’d like.

    Incidentally, “But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg” originates with Jefferson.

  • doublereed

    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.

    Sure, but what it could be is simply the legislators trying harder than usual to harm civil rights. If the Court keeps striking down racist laws, because the legislators keep passing racist laws, then saying that the Court is activist seems mightily dishonest.

    It’s not even whether the court “gets it right” or not. Striking down laws depends entirely on what laws have been passed.

  • D. C. Sessions

    You know, the term actually used to have a reasonably precise meaning: a court that ruled according to its own agenda and outside of the scope of the case before it.

    My favorite example is Citizens United, although Shelby County may take that position. In Citizens United, the Chief Justice and other members of the Court were determined to make a very broad ruling totally outside of the bounds presented to it in arguments or before a lower court, and much broader than that required to settle the case before it. Because of strenuous objections by the minority, the Court ordered a rehearing on the case in order to allow CU to argue for the position the CJ wanted. Pure engineering, about as classic a case of judicial activism as you could find.

    Also, I regret to say, good Constitutional law. I’m not alone in that, by the way — I don’t think anyone considers Beau Biden (for instance) to be a tool of the right-wing plutocracy, but he’s made that argument several times.

  • Michael Heath

    Adam Liptak uses the term based on what can be measured. Also, when used as he did, the term is not a pejorative but instead neutral. I recall a study by a prof at Yale several years ago that measured the activism of the members of the Rehnquist Court. That research found the conservatives were far more prone to overturning legislation, particularly Justices Thomas and Scalia though Ginsburg was also up there. Justice Breyer was the most reticent to overturn legislation.

    Of course the term isn’t used like this in the public square dominated by the media or ignoramuses. But instead used with varying explanations that are convenient to one’s argument.

  • gshelley

    I think a coherent argument could probably be made that there is possible judicial activism, for example, a ruling that totally ignored all precedent, but though I have seen people claim this, on inspection, these so called activist rulings always have plenty of precedent

    Alternatively, ruling from the consequences would be activist – “If this is outlawed, other laws I really like would have to go as well”, which Scalia at least comes close to probably should count as activism.

  • Pierce R. Butler

    Michael Heath @ # 9: Adam Liptak uses the term based on what can be measured.

    I suspect that if Adam Liptak drops his keys in a dark alley, he goes out to look for them on the street corner by the light pole.

  • vmanis1

    I suspect that `judicial activism’, like `political correctness’, loses all meaning as one examines it more closely. The U.S. constitution (along with many others nowadays) wisely established the courts as a mechanism for evaluating whether or not laws are constitutional or not. Therefore in striking down (or not striking down) a law, a court is just doing its job.

    Measuring `activism’ in the number of laws struck down seems to me like the long-since-exploded metric of computer programmer productivity, number of lines of code written per day. Both metrics are actually by-products of the real job at hand, monitoring the constitutionality of laws, or writing useful software. Back when I taught software engineering, I used to compare the latter metric to measuring the productivity of a dairy herd by counting the number of generated cowpats per day.

    To see the fallacious nature of this particular activism metric, imagine two congresses. Congress A passes laws against same-sex marriage, requires women seeking an abortion to wear a placard saying `I am a baby-killer’, reinstates segregated buses and diners, and declares the Southern Baptist church to be the official church of the country[*]. Congress B wisely refers each of its bills to legal advice, and only passes those that are, in the best judgement of legal scholars, constitutional. We would hope that a court would strike down Congress A’s laws, but not strike down B’s. But there is no element of activism there: courts deal with matters that are referred to them, and Congress A simply gave them more to work with.

    As for judging a court by whether its judgements are `correct’, this assumes that there is some empirical method of determining this. We can of course point to defective legal scholarship in a judgement as a reason why it’s incorrect, but ultimately there is nothing except our collective values to determine this. Were Dred Scott, Plessey, and Bowers v Hardwick incorrect? Justice Powell said after Hardwick that he was wrong, and that his reasoning was inconsistent with Roe v Wade. But laws don’t all point in the same direction, and another judge might reason differently. (This is not meant to excuse judges like Scalia, whose judgements have about as much to do with reasoning as my vocal effusions in the shower have to do with singing. Sometimes each of us gets a note right, and then goes sadly astray.)

    Ultimately, we define the judgements in the above cases as wrong, and judgements in cases such as Brown, Roe, Loving, and Windsor as right, not by appeals to the Constitution, but by our sense of fairness and equality. As a result, while there are efforts to amend the Constitution in the light of Citizens United, no reasonable person has proposed amending the constitution as a result of these four cases.

    The courts do not always produce the result we would like, but, as Winston Churchill said of democracy, courts are the worst possible system, except for all the others.

    [*] The examples I chose are all right-wing in nature (we recall Rand Paul’s ambiguous comments on desegregation a few years ago). As a leftie, I am compelled to admit that the political left (in countries that have lefts left) tries unconstitutional measures too—one would mention the NSA—and those too deserve attention by the courts.

  • brianwestley


    Right in what way and by what criteria?

    Ethically right? Legally (technically) right? Politically right?


  • exdrone

    I thought that judicial activism is defined as the tendency to strike down laws favoured by prickly conservatives.