What Is an Activist Judge? (And a Few Bonus Thoughts)

Now that President Obama has nominated Judge Sonia Sotomayor to the Supreme Court, we will undoubtedly begin to hear the Republicans proclaim that she is an "activist judge" and, thus, should not be confirmed to the bench. The next time that you hear that phrase, however, stop and think about what it really means. We often hear Republicans using the phrase "legislate from the bench" when describing a so-called activist judge. Again, what does that phrase mean? If a friend or colleague describes Judge Sotomayor as an activist judge, ask them to explain precisely what that means and don't let them simply say that she legislates from the bench. Ask for specific examples of what is meant by judicial activism and legislation. And if the only thing that your friend or colleague can come up with is some mumbo jumbo about creating new rights, you might ask what, precisely, is wrong with finding that people have certain rights...


Anyway, when thinking about the answers to those questions, consider the following. By one measure, legislating from the bench could be thought of as countermanding the will of the elected leadership of the nation, in other words, invalidating legislation passed by Congress or a state legislature. Back in 2005, The New York Times examined the voting records of the nine Supreme Court justices for the period from 1994 through 2005 to see which ones most frequently struck down Congressional laws. Before looking at the results, take a minute guess which justices you think will have been the most active at striking down laws, then see if the actual results conform to your guess:

Thomas	65.63%	conservative
Kennedy	64.06%	moderate
Scalia	56.25%	conservative
Rehnquist	46.88%	conservative	replaced by Roberts
O’Connor	46.77%	moderate	replaced by Alito
Souter	42.19%	liberal	to be replaced by Sotomayor
Stevens	39.34%	liberal
Ginsburg	39.06%	liberal
Breyer	28.13%	liberal

For those who are not Court watchers, I've noted above which justices are generally thought of as liberals, moderates, or conservatives and I've made notes about the justices that are no longer on the bench (and who replaced them).

Or, take a look at these results from a similar study done by Cass Sunstein for The Washington Independent in which he examined the rate of the justices of upholding agency decisions:

Breyer	82
Souter	77
Ginsburg	74
Stevens	71
O’Connor	68
Kennedy	67
Rehnquist	64
Thomas	54
Scalia	52

Did you notice anything odd about those results? The three conservative members of the Court were far more likely to strike down laws passed by Congress (or were less likely to uphold agency decisions) than were the liberal members of the Court. But how can that be? Wouldn't the act of striking down a law passed by Congress be a case of legislating from the bench, the hallmark of an "activist judge"? Hmmm. Things to think about as the nomination process moves ahead.

I'm sure that I'll have more thoughts on the nomination in the weeks to come, but I did want to offer a small taste of what I suspect we can expect from the nomination process. Here, for example, is a portion of the comments of Sen. James Inhofe (R-Oklahoma) (and yes he's the senator that I took to task for hypocrisy in an IN Touch posting) about Judge Sotomayor:

In the months ahead, it will be important for those of us in the U.S. Senate to
weigh her qualifications and character as well as her ability to rule fairly
without undue influence from her own personal race, gender, or political
preferences.

I wonder whether Sen. Inhofe has the same concerns about white men? After all, if Judge Sotomayor is confirmed, there will only be six white men left on the Court. Moreover, clearly white men have never been influenced by their own race, gender, or political preferences, have they? I mean, it isn't like white men ruled that separate but equal was acceptable. (It is also worth noting that, if confirmed, Judge Sotomayor would be the sixth Catholic to sit on the current bench.)

Second, Republicans from Karl Rove on down the food chain are already expressing concerns that Judge Sotomayor might not be "smart enough" to be on the Supreme Court. To quote SCOTUSBlog:

The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.

Oh, and she was also an editor of the Yale Law Review and the editor of another Yale law journal.

I suspect that those who claim that Judge Sotomayor isn't smart enough are the same people who weren't particularly impressed by candidate Obama's academic credentials and who thought that Sarah Palin's attendance at tiny schools nobody has ever heard of was more than sufficient for her to be elected to the office of Vice President. (See my previous post Elitism in Politics for more on that thought.)

Over the coming weeks and months, you will hear plenty of criticism (and praise) for Judge Sotomayor. Just remember to consider the source of the comment, whether the source has an agenda, whether the source knows what they're talking about (it is easy to comment on a judicial opinion; it is another thing entirely to actually read the opinion and then speak knowledgeably about it), and whether the source has been even-handed in criticisms of other nominees (and the nomination process). Then take some time and do some independent reading. Don't just listen to a particular soundbite that may be taken out of context; go listen to the speech (or at least more of it). Don't just presume that what an advocate tells you is, in fact, true; go see for yourself. To get you started, here's an article from SCOTUSBlog on her judicial record.

And, for the record, I have not yet had an opportunity to review her judicial record or learn much more about her than what has been on the news over the last day or so. Thus, I have not made up my own opinion as to whether she should be confirmed or will likely make a good justice. I'll make an informed decision as I learn more.