Liberal hacks love to accuse conservative jurists of “judicial activism.” So we shouldn’t be surprised that Justice Ruth Bader Ginsburg made that claim in an interview with the New York Times. “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Ginsburg declared.
The extent to which a court overturns legislation and precedent is one way — but not the only way — to measure its “activism.” Measured in this way, the “Roberts court” is not activist.
As Ammon Simon reminds us, Jonathan Adler has shown that the Roberts is less prone to overturning legislation and precedent than any Supreme Court since World War. Adler based this conclusion on data from the New York Times which showed:
The Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term.
The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term.
The numbers for the Roberts Court were as of the end of the 2010 term, but according to Adler they haven’t changed much since.
Indeed, it was after 2010 that the Supreme Court issued its remarkable decision on the constitutionality of Obamacare. If the Court were remotely as prone to striking down legislation as Ginsburg pretends, it (by which I mean the Chief Justice) would not have performed handstands in order to uphold the individual mandate.
But we can’t expect a left-wing partisan like Justice Ginsburg to let the facts stand in the way of a good rant.
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