Conservative Judicial Activists

[The Jacobin]

Southpaw posted this story about who is and who isn't an activist on the Supreme Court:

How often has each justice voted to strike down a law passed by Congress?

The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

[napi21]

1. An activist judge is one who doesn't agree with me!

I don't remember who originally said that, but I've heard it quoted many times recently.

I think that's very true too, on both sides!

[Deep13]

2. Two worst cases of judicial activism:

Both from SCOTUS

NY v. Lochner 1905
Struck down NY state law that limited the hours a baker may work. Bakers invariably died young of respitory failure from inhaling flour. This law was an attempt to promote worker safety. It assumed that if bakers were permitted more time off, they would want it. SCOTUS took the view that the bakers' right to form contracts was being infringed by the state, as if they wanted to work 80 hours a week. It was struck on that basis and the effect was essentially to prevent any state regulation of labor of thirty years. If ever there was a case of intrusion into the rights of states by the Federal courts this is it.

I am concerned that the present focus on abortion for SCOTUS nominees is obscuring an effort to reinstate this rule.

Dredd Scott (1854??)
A slave who lived in a free state does not become free. This contradicted a similar rule in England where the House of Lords had ruled that when a slave from elsewhere in the empire touched the free soil of Britian, that person instantly became free. SCOTUS went on to say in effect that there are no free American states as slave holders are free to move their property anywhere in the country. This upset the precarious balance of slave and free states that had preserved the peace since the Constitutional Convention. With this decision, civil war was inevitable.