I've Got Your Activist Judges Right Here (No, Seriously..)

With the confirmation hearings not until January for the Right-Wing frozen caveman judge Alito, who comes from a time when women were dragged by their hair by club-wielding, NASCAR watching husbands, you’re going to hear a lot of talk from pundits, including most definitely our president, about how he’s not an “activist judge.”

It’s the latest and most frequently uttered buzz phrase invented by the Right to get an increasingly uneducated American public in a frenzy about any particular judicial decision they don’t agree with.

A court struck down provisions that make it ok to kick gay people out of housing simply because their gay? Must be the activist judges.

Judge so-and-so used the Constitution to make it illegal for employers to discriminate against expecting mothers in the workplace? Must have been an activist judge.

“Activist judge” simply means some justice somewhere in the United States determined that the current law passed by a legislative body (and therefore the “will of the people”) was inherently unconstitutional because it violates the rights and protections of those same people.

Well, I’m here to prove once and for all that this phrase (along with countless others) are baseless marketing ploys, that not only ring untrue when you look at the actual facts – but also prove the exactly opposite of what the phrase itself was intended to convey.

One only needs to look at the rulings of justices on the Supreme Court. Why? Because the very judges who most frequently overrule the legislative bodies of Congress are the ones that are considered to be and appointed by conservatives in the first place.

The New York Times recently conducted a study of the Supreme Court rulings since 1994 to determine which justices are ruling against the current legislation. What did they find?

The most activist justice on the court was Bush I appointee, and avid pornography connoisseur, one Judge Clarence Thomas. The least activist? Clinton nomination and typically liberal voting justice, Mr. Stephen Breyer. Here’s the date (justices who were nominated by Republicans and/or are considered conservative are shaded red, those nominated by Democrats and/or are considered to vote more progressive, are shaded blue)

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%

Or, put another way:

The conclusion of the Times is as follows:

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.

And finally, my two cents:

If by it’s very definition, an activist judge overturns legislation, I do not consider the label “activist judge” a true pejorative label. Judges are not appointed to “go with the majority.” In fact, quite the opposite. They are there to interpret the law, first and foremost the Constitution – they are, in actuality, the very check to balance out the will of the people when that will goes against the protection of said people.

The will of the people in this country has not always been perfectly stellar. I would point to slavery, segregation, women’s suffrage, voting rights and other Civil Rights abominations that were once the will of the people, but clearly not just or beneficiary to our country.

Consequently the courts are there to protect us, when 51% of our fellow Americans will not.

I strongly encourage you to email this post to any of your Republican friends who buy into the whole "activist judge" thing. Instead of arguing the merits of your position - they will dismiss the entire thing because it was published by the New York Times.

How activist-like.