Bench Memos

Justice Ginsburg and ‘Judicial Activism’

Justice Ginsburg claimed in an interview with the New York Times published Friday that the Roberts Courts is “one of the most activist courts in history,” as “measured in terms of readiness to overturn legislation.” Justice Ginsburg isn’t breaking ground here so much as repeating a political talking point that has become conventional wisdom among liberals.

I take issue with her definition of judicial activism, which can’t be boiled down to overturning legislation, but instead happens when judges employ novel and expansive readings of the law to reach a preferred policy outcome. But even under the liberal redefinition of judicial activism, Justice Ginsburg’s claim is still misleading. Jonathan Adler reviewed the evidence for this charge last year, and concluded it is a myth: “If by ‘judicial activism’ one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period.”


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