Activist Judges and the Court

I realize I haven’t posted anything about the retirement of Justice Sandra Day O’Connor. Even though she is a conservative, I respect the hell out of her and her tenure on the Court. I’ve not always agreed with her decisions…Bush vs. Gore still pisses me off…but overall she has been a fine Jurist. Now let the mayhem begin!

Speaking of the Court, I read a great New York Times op-edtoday by Paul Gewirtz and Chad Golder in which they suggest an actual measure for what makes an "activist" judge:

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 [again, my favorite Justice], appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. 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.

President Bush has persistently praised Scalia and Thomas as archetypal judges (and has said they are his favorites). From that position, am I wrong to assume that what Bush and the conservatives are really looking for are judges that "legislate from the bench", overturning laws and overriding the will of Congress, and by extension, the American people. Am I?

The whole Republican/neo-con concept of "activist judges" is erroneous at best. I would also include nutty, intellectually lazy, and downright dishonest in the description. In reality, the neo-con fundamentalist “religious right” wants desperately to appoint "activist judges" who reshape laws according to their personal religious or conservative preferences. And on top of that, they don't want anyone else to point that out.

The next time you hear a Republican or neo-con rail about “activist judges,” shove this down their ass…excuse me…immorality orifice.