The “Roberts Court” and “Judicial Activism”

by Ed Whelan

In August, Justice Ginsburg made news with her criticism of the Supreme Court:

If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history…. This court has overturned more legislation, I think, than any other.

This article by Adam Liptak in Sunday’s New York Times refutes Justice Ginsburg’s contention. As Liptak sums up the data, “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.”

As I discussed in my original post on Ginsburg’s claim, I don’t think that her neutered definition of judicial activism is sound, nor do I think that Ginsburg can be taken seriously as a proponent of judicial restraint. That said, it’s good to have the record straightened out on how often the so-called “Roberts Court” strikes down legislation.

I say so-called because I think that the convention of naming the Court after the reigning Chief Justice often obscures more than it enlightens. Given the decisive role that Justice Kennedy plays in so many 5-4 ideological divides (with the Obamacare case as a major exception), it would be far more accurate to think of the Court as the Kennedy Court.

Indeed, according to Liptak’s data, Justice Kennedy has voted with the majority in 94% of the cases in which the “Roberts Court” has struck down a law. As Liptak suggests, that fact makes rather bizarre Kennedy’s recent (award-winning) lament that “Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

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