If "judicial activism" is defined as the Supreme Court's willingness to strike down laws, the current court led by Chief Justice John Roberts is less activist than any court in the past 60 years, according to an analysis by The New York Times.
This may come as a surprise to court watchers because both conservative Antonin Scalia and liberal Ruth Bader Ginsburg, despite being philosophical antagonists on the Supreme Court, have agreed that their court is on the wrong side of judicial activism.
"If it's measured in terms of readiness to overturn legislation, this is one of the most activist courts in history," Ginsburg said. "This court has overturned more legislation, I think, than any other."
"When I complain about the activism of my court," Scalia said, he meant that his colleagues identified rights, like one to abortion, that were not in the text of the Constitution, according to the Times.
The activist impression of the Robert's court was bolstered when it struck down in 2010 part of a federal law regulating campaign expenditures by corporations and unions thereby overruling two precedents. In June 2013, it ruled parts of the Voting Rights Act and the Defense of Marriage Act were unconstitutional.
Nonetheless, these decisions are exceptions, according to the Times.
The liberal court under Chief Justice Earl Warren (1953 to 1969) invalidated laws at almost twice the rate of the current Roberts court.
Under Chief Justice Warren Burger (1969 to 1986) a conservative court was even more activist. And the court under the conservative-leaning Chief Justice William Rehnquist (1986 to 2005) was also more activist than the Roberts court, the Times' analysis indicated.
Lee Epstein, who teaches law at the University of Southern California, said "claims about the Roberts court's activism seem overwrought."
Now, a new school of criticism has emerged among some libertarian conservatives that sees the Supreme Court as not activist enough.
In a new book, "Terms of Engagement,"
Clark Neily calculated that the court had struck down just 103 out of over 15,000 laws enacted by Congress in a 50-year period ending in 2002.
"It is implausible," Neily wrote, "to suppose the federal government hits the constitutional strike zone 99.5 percent of the time."
America is a constitutional republic not a pure democracy, Neily argued. Preventing majorities from violating individual rights and blocking legislators from exerting powers they do not lawfully possess, should not be denigrated as judicial activism, he wrote.
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