New Report Debunks Myth of Judicial Activism

J. Justin Wilson
J. Justin Wilson · September 28, 2011

Arlington, Va.—Is the U.S. Supreme Court running roughshod over the other branches of government?  Is it true, as outgoing Sen. Arlen Specter claimed, that the Court “has been eating Congress’s lunch by invalidating legislation with judicial activism”?

According to a new report from the Institute for Justice’s Center for Judicial Engagement called Government Unchecked: The False Problem of “Judicial Activism” and the Need for Judicial Engagement, the answer is emphatically no.

Read the report:

Contrary to popular belief, the Supreme Court rarely strikes down laws or regulations or overturns precedents—key concerns of those who decry “judicial activism”—and this is consistently true over the past five decades.

“By the numbers, the image of rampant judicial activism is false,” said Clark Neily, an Institute for Justice senior attorney, director of the Center for Judicial Engagement and co-author of Government Unchecked with IJ Director of Strategic Research Dick Carpenter.  “Compared with the explosive growth of laws and regulations, the Supreme Court’s actions to impose constitutional limits on the legislative and executive branches are barely blips on the radar screen.”

The report finds:
•    Congress passed 15,817 laws from 1954 to 2002.  The Supreme Court struck down 103—or just two-thirds of one percent.
•    State legislatures passed 1,006,649 laws over the same period but the Court only struck down 452—or less than one twentieth of one percent.
•    The federal government adopted 21,462 regulations from 1986-2006.  The Court struck down 121—or about a half of a percent.
•    In any given year, the Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.
•    The Supreme Court overturned precedents in just two percent of cases considered from 1954 to 2010.

“Too often, ‘judicial activism’ is nothing more than a red herring that allows both sides of the political spectrum to criticize the Supreme Court when they disagree with its decisions,” said Neily.  “The question shouldn’t be whether the Supreme Court is ‘activist,’ but whether it is doing its job to enforce constitutional limits on government power and protect individual rights.”

Neily concluded, “The years we studied saw more than a million federal and state laws passed and more than 20,000 federal regulations adopted.  This explosive growth in the size and scope of government was made possible by years of judicial abdication.  What Americans need is neither activism nor abdication, but judicial engagement:  judges enforcing constitutional limits on government power consistent with the text, purpose, and history of the constitution as a charter of liberty and a bulwark against overweening government.”