Judge Sotomayor’s Confirmation Hearing Begins

There probably won’t be many fireworks today in Judge Sotomayor’s Senate confirmation hearing–day 1 is reserved for opening remarks, so there won’t be any questions or back-and-forth exchanges until tomorrow.

But, if anyone should bring up the garbage talking about about “liberal judicial activism,” just keep this in mind:

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?


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.

[Emphasis mine, as is the color-coding; red denotes a Republican appointee, blue denotes a Democratic appointee]

So, the conservative justices are far more activist than their liberal counterparts, meaning that “liberal judicial activism” is a myth while conservative judicial activism is a very real phenomena.

Just something to remember during the ongoing right-wing assault against Judge Sotomayor.