‘Judicial Activists’? Look to the Right

There’s a great deal of talk this week from the right-wing that Obama’s nomination for the Supreme Court is just another “judicial activist” judge. That is to say she’ll vote to overturn or make policy, not uphold existing laws. Before conservatives start to hoot and holler too loudly however, they should take a deep breath and look at the judges on their own side of the isle.

A study in the NYT today attempts to shed some light on which Supreme Court judges have voted to strike down the most laws passed by Congress, which is considered to be the most telling factor if a judge is an “activist”. The result? the justices that voted to overturn existing law, or “make policy” the most frequently were… drum roll… the right-wing or conservative judges. From the NY Times:

“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:

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.

Imagine that. All of this is moot of course, because Sotomayor will most likely be confirmed easily and join the court in its fall session. She has the votes and by all regards (except for the 25% of the country clinging to Rush Limbaugh and Karl Rove like grim death) is a fine choice for the bench. She graduated with honors from two Ivy league schools and has even been known to side with conservatives from time to time.

To all those who rue Obama’s selection for the Supreme Court, I really have nothing to say to you except elections have consequences. Obama was the victor, and now he, not you, gets to fill vacant seats on the court. That’s just the way things work. If you need some small measure of satisfaction, you can choose not to participate in National Fist Bump Day (June 3rd). Huzzah!