Before Conservatives Rail Against “Activist Judges”…

Dianne Feinstein pointed out that the term “activist judge” has often applied to conservatives, much as they would have you believe that only liberals fit that category.  In fact, more often that not, it’s been conservatives who’ve been the so-called activists.  Professor Paul Gerwitz of Yale and Yale Law graduate Chad Golder quantified the issue:

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.

And, by the way,  “activism” isn’t always bad. Some laws should be struck down. But the phrase “activist judge” is unfairly tossed around more often than not to hurt the chances of a left-of-center nominee.

By: Alan

Alan Colmes is the publisher of Liberaland.