Jun 26, 2012 6:53 PM GMT
Despite the hysterics in the press... as it turns out the Roberts Court is far from activist/radical.
The Supreme Court has not yet ruled against the individual mandate, and who knows whether it will. Yet this has not stopped commentators from making sweeping charges about the Court. Many commentators, for instance, are charging that the Roberts Court is “activist.” For some, “activist” is just a label for judges that make decisions they don’t like; one man’s “activist” is another’s constitutional paladin. For others, however, the label “activist” is used to describe a court that is particularly “active” in overturning precedent and invalidating laws, and thereby altering the course of the law. (…)
The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens). This does not mean the Roberts Court’s decisions are correct and there are exceptions to every rule. Nor does the court’s past conduct necessarily predict the future. It does, however, mean that when one looks at the Court’s overall behavior (and not at a single case) it is inaccurate to say that this Court is particularly “activist” in moving the law in a conservative direction by overturning precedents and invalidating federal laws.