SCOTUS Watch
Drudge was practically hyperventilating with the possibility that Rehnquist might retire this last Friday. Well, nothing came of it, but it's not out of the realm of possibility for this coming week for a second SCOTUS (Supreme Court of the United States) seat for BushCo to fill. The Great SCOTUS War of 2004 has already been engaged by both sides, and there's talk about "activist judges" on both sides of the divide. I was reminded today by my mother-in-law that the NYTimes last week had an article by Paul Gewirtz and Chad Golder that looked at who really were the activists on the SCOTUS bench. The answers, as they say on local news teaser commercials, will surprise you:

WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees. In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court. Here is the question we asked: How often has each justice voted to strike down a law passed by Congress? Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred. [...] 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, 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. To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.