Bench Memos

re: Statistical Flim-Flam Against Criticism of Judicial Activism

Ed’s post regarding IJ’s “Government Unchecked” study underscores the tension between constitutionally limited government and exercises of majoritarian will. The study demonstrates that while there are certainly specific Supreme Court decisions that outrage both the left and the right, the data simply does not bear out the idea that an out-of-control judiciary is overturning a broad swath of federal or state laws (the image deliberately cultivated by statements like Arlen Specter’s assertion last year that “the Supreme Court has been eating Congress’s lunch by invalidating legislation with judicial activism”).

I look forward to discussing the implications of the “Government Unchecked” study and the importance of judicial engagement during the debate between Ed and me at Georgetown Law Center tentatively scheduled for October 13.

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