What Justice Ginsburg Gets Wrong

by Pejman Yousefzadeh on August 29, 2013

Her disparagement of the Roberts Court notwithstanding, it is not an activist Court:

Justice Ruth Bader Ginsburg believes the Roberts Court is “one of the most activist courts in history,” according to a widely cited interview with the NYT‘s Adam Liptak.   ”Activist” is a slippery label, often indicating nothing more than disagreement with a Court’s decision in a given case.  fortunately Justice Ginsburg provided Liptak with a definition.  Specifically, Ginsburg told Liptak that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”  This is one way to define judicial activism, but if this is the definition Justice Ginsburg wants to use, her accusation falls wide of the mark.

If activism is “measured in terms of readiness to overturn legislation,” the current Court is not one of the “most activist courts in history,” at least not compared to others of recent memory.  As Liptak’s own reporting has shown,the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts.  Liptak wrote his earlier story in July 2010, but the conclusion still holds.  Since 2010 the rate at which the Roberts Court has struck down federal legislation has actually declined.  According to the same report, the Roberts Court overturns precedent at a lower rate than did prior post-War courts.

If in calling the Roberts Court  ”one of the most activist courts in history,” Justice Ginsburg meant that the Roberts Court is more activist than, say, the seriatim or Marshall Court, she has a point. If she meant to imply the Roberts Court is any more “activist” than any other court in the past 60 years, she doesn’t.

Maybe the New York Times should correct the record on this point. You know that they would if John Roberts, Antonin Scalia, Clarence Thomas or Samuel Alito made a similar boo-boo.

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