Bench Memos

Statistical Flim-Flam Against Criticism of Judicial Activism

I’m sorry to see that the good folks at the Institute for Justice (which identifies itself as a “libertarian public interest law firm”) continue their misguided campaign against the very real problem of “judicial activism.”  In a short op-ed (subscription required) in yesterday’s Wall Street Journal, the IJ’s Clark Neily cites various statistics that purportedly show that there is in fact no problem of judicial activism. But Neily’s statistics, and the IJ report that he draws them from, utterly miss the mark.

Neily thinks that it is striking and significant that the Supreme Court has, by his statistics, “struck down” only 104 of 16,015 laws—“just two-thirds of 1%”—that Congress enacted over a recent 50-year period, only “about 0.5%” of federal regulations, and “less than one-twentieth of 1%” of state laws. (Frankly, I would have expected the federal percentages to be much lower.) But these statistics tell us nothing important. They don’t tell us whether the Court was right or wrong in particular cases. They don’t tell us whether the Court should have struck down more or fewer laws (as there is no objective theoretical baseline for how often the Court should strike down laws). And they convey nothing about the magnitude of any judicial errors.

Every time the Supreme Court wrongly invalidates a democratic enactment, it usurps and shrinks the realm of representative government. Further, some of those usurpations are far more significant than others. Take Roe v. Wade, for example. To reduce Roe to a simple statistical point in the calculus is to ignore how Roe has distorted and corrupted American politics for more than four decades—and how it has prevented the passage of countless laws. Ditto for numerous other instances of liberal judicial activism that, especially since the 1960s, have overridden the ability of American citizens to exercise their powers of self-governance on a broad range of issues.

Regrettably, Neily seems to descend to outright fabrication when he asserts:

Those who accuse the Supreme Court of activism for striking down a tiny fraction of laws apparently envision no meaningful role for the court in policing constitutional boundaries. They are like Nancy Pelosi responding to questions about the constitutionality of ObamaCare: “Are you serious? Are you serious?”

I and other advocates of judicial restraint support the Court’s ability to exercise judicial review of the constitutionality of laws. The divide between Neily and us is over when the Court may properly strike down laws. It is Neily who shows Nancy Pelosi’s level of seriousness in suggesting otherwise.

Neily does no more than assert that “significant limits on government power … are not being properly enforced because too many judges have adopted an ethic of reflexive deference toward the other branches of government.” Perhaps he’s right. But he doesn’t offer an actual argument or any examples in support of his assertion. Nor does he explain why a judicial ethic of reflective (rather than reflexive) deference is unwarranted—or how the “due consideration” standard that he proposes in the IJ report (on page 10) is anything other than a license for judicial willfulness.