The Roberts Court’s supposed activism

by Walter Olson on October 14, 2013

It’s debunked by Adam Liptak’s sources in a good piece this weekend: “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.” [New York Times; Jonathan Adler] More: Watch author Clark Neily, cited in Liptak’s article, speak recently at Cato about his new book Terms of Engagement.

{ 5 comments }

1 DensityDuck 10.14.13 at 9:08 pm

There are some people who just will never get over their butthurt that Roberts didn’t rule Obamacare unconstitutional.

What they don’t realize is that Roberts handed them their next line of attack–”they said they could fix healthcare without raising taxes–but, as it turned out, not only did they raise taxes but they didn’t even fix healthcare!”

2 Stewart Peterson 10.15.13 at 12:03 am

I don’t know if I’d define judicial activism that way. It’s not just striking down laws, it’s *actively* creating precedents that don’t appear in, or aren’t a consequence of, any provision in the law.

For instance, a judge gets a case where, let’s assume, everyone agrees that one particular outcome would be desirable. Problem is, it’s under federal jurisdiction, and the Senate is too busy stroking themselves to consider it. So the judge declares that the penumbras of various unrelated statutes and random parts of the Constitution dictate that the desired outcome *must* happen.

The judge didn’t strike anything down – he affirmed everything he came across. Yet this is clearly judicial activism.

3 Boblipton 10.15.13 at 6:52 pm

Judicial activists: Courts which strike down laws of which we approve, which is bad.

Strong courts: Courts which strike down laws of which we disapprove, which is good.

Bob

4 Malcolm 10.15.13 at 9:47 pm

Mr Peterson is perfectly correct. Judicial activism is not defined by how many laws are struck down, but whether the judge casts aside the plain meaning of the law, the intentions of the writers, and precedents in favour of his own political opinions. Indeed, considering the tendency of some jurisdictions to expand their domain by constantly passing laws without consideration of constitutional matters, a high rate of laws struck down would indicate that the judge was not an activist.

5 Daniel 10.15.13 at 11:22 pm

Striking down unconstitutional laws is the duty of the Supreme Court. Thus, that couldn’t be “judicial activism.” Stewart has a better definition of judicial activism. Judicial activism is going beyond the Constitution and creating law that was not enacted by Congress or not justified by Common Law. If the courts are striking down constitutional laws or upholding unconstitutional laws, then that is a more reasonable definition of judicial activism. Mr. Liptak is making up an unreasonable definition of judicial activism so he can say the court is not being activist.

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