The Most Activist Judge: Clarence Thomas
by Hunter
Wed Jul 6th, 2005 at 11:17:08 PDT
This New York Times op-ed by Paul Gewirtz and Chad Golder suggests 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, 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.

Bush has repeatedly praised Scalia and Thomas as model judges; one can infer, from that, 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. Right?

As the editorial suggests, the entire Republican notion of “activist judges” is imprecise at best. To that I’d add silly, intellectually lazy, and more than infrequently completely dishonest. The religious right wants desperately to appoint “activist judges” who reshape laws according to religious conservative preferences. They just don’t want anyone else to point that out.

So let’s toss that Republican talking point down the nearest storm drain. Or start using it against them.

What you fail to write in your note is the laws that struck down are liberal crap laws that should be struck down. Less government is better. Half the laws on the books should be thrown out.

Why dont you speak on how liberal judges think private companies can take your land for private development. I hope the guy from CA that is going after Souter’s land gets it. We need a “Lost Liberty Hotel”

An example: William O. Douglas refused to watch the porn films during the heyday of the Court?s post Fannie Hill repositioning. He said that he didn?t need to watch because he already knew that there was nothing in them that violated the 1st Amendment. ?Congress shall make no law?? meant exactly that to William O. Douglas.

Turning to the lovely ?50% of all laws? clich?, I?d like to point out that there is no process for removing out dated laws from the books. The only way to remove a law is for the legislature to expressly repeal the law. In nearly every state there are very old laws regarding rights-of-way for farm animals and regulations of the commons for grazing. There are antique laws governing everything from ice-cutting to miscegenation. The latter has been invalidated by a series of equal-protection and privacy rulings of the Supreme Court. Still, an invalid statute stays on the books unless removed by repeal.

Do we really want to pay for a legislature to review and rewrite antique laws where they might find a few old ideas that they can rewrite and use to play to the religious masses? Blue Laws anybody?

Also, look at Iran where it is said that mosques are filled with old men and boys. The Islamic revolution has created a backlash against Islam from young people. Iran was a much more religious country when it was under the rule of the secular Shah.

In my view the religious right is setting in motion events that will lead to a major backlash against religion in the future. When the moderate majority sees their rights and freedoms being slowly but surely eroded by politicized religion there will be an inevitable backlash.