A fascinating op-ed in the New York Times discusses the idea of “judicial activism.” The authors suggest that one measure of activism is the amount of times a judge votes to invalidate legislation passed by Congress. Using that measure, they write that:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent.
The op-ed is subject to critique, of course. For example, Jack Balkin has some interesting thoughts here.
I personally don’t think that the “activist” label conveys much useful information. As the Gewirtz study shows, judges of all different political persuasions strike down statutes all the time.
It will be tempting for liberals to try to hoist conservatives on the activism petard now, using these statistics. But a better course would be to inter the “activist” label altogether. The Gewirtz study highlights the relatively useless nature of the label “activist.”