Government Unchecked

The past five decades have seen a relentless expansion in the size of government and a sharp increase in the num­ber of liberty-stifling laws and regulations at every level. Despite this explosion of political power, commentators and scholars of all ideological stripes appear to worry more about the supposed growth of judicial power.

Those who decry so-called “judicial activism” complain that the Supreme Court too frequently strikes down the acts of elected rep­resentatives, infringes on the prerogatives of the executive branch or upends settled law by overturning its own precedents.

This report puts those claims to the test with empirical data and concludes that we suffer not from rampant judicial activism, but rather from too little judicial engagement.

The Supreme Court rarely strikes down government enactments or overturns its own precedents—and this is consistently true over the past 50-plus years.

The years examined in this report saw more than a million federal and state laws passed and more than 20,000 regulations adopted. Many of these restrain liberty in significant ways. Decades of the Supreme Court’s abdicating its duty to enforce the Constitution have made this growth in the size and scope of government possible.

More judicial “restraint” is not the answer. Judges engaging in meaningful review of constitutional claims and the facts behind them is the answer.