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Originally Published: 9/13/2006


By The Issue Wonk


Nominees for United States courts – the Supreme Court and the federal courts – are frequently labeled as subscribing to one of two judicial philosophies. One is Originalism, sometimes called Constructionalism. The other is The Living Constitution. The Living Constitution philosophy relies on the fact that the Constitution sets out a means of amendment (set out in Article 5) and, thus, it appears that the writers expected that the Constitution would need a different interpretation from time to time. Originalism or constructionalism refers to a philosophy that limits judicial interpretation to the meanings of the actual words and phrases, and not to other sources or inferences.


Justices who subscribe to the philosophy of The Living Constitution are, by definition, activist. By arguing that many cases coming before the courts today couldn’t possibly have been foreseen by the Constitution’s writers, these judges look at the intent of the writers. Judges who subscribe to the constructionalist philosophy believe they are “restrained” by the meaning that the Constitution had when it was written. Adherents look strictly at the text in question rather than relying on the intent. 


“Judicial Activism” maintains that laws and prior court decisions (precedents) sometimes need to be overturned. “Judicial Restraint” maintains that the court should not overturn laws or court precedents. Justices subscribing to Judicial Restraint believe that elected representatives, not the courts, should change the laws, even if they do not agree with them, and that the U.S. Constitution should be strictly interpreted. Justices subscribing to Judicial Activism believe that it may not always be appropriate to apply prior court decisions to current issues and that there are times when laws need to be set aside because they violate the U.S. Constitution.


Much of the current discussion about “activist” and “restrained” judges pits one against the other. However, this is not necessarily the case. Frequently, judges will vote as an “activist” in one case and “restrained” in another. In fact, you will often hear and read from major media outlets the spurious relationships: that a conservative judge is a “restrained” judge, or a constructionalist, and that a liberal judge is an activist judge. But, it is not truly the case of conservative vs. liberal. It is much more complicated than that.


The truth is, in the U.S. Supreme Court, the conservative judges are the most activist judges. Paul Gewirtz, a professor at Yale Law School, and Chad Golder, one of its recent graduates, “identified one reasonably objective and quantifiable measure of a judge’s activism, and . . . used it to assess the records of the justices on the [then] current [Rehnquist1] Supreme Court.”2 They asked the question, “How often has each justice voted to strike down a law passed by Congress?” They used this as a measure of “activism” because, they said, “Declaring an act of Congress unconstitutional is the boldest thing a judge can do. . . In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act ‘of great delicacy, and only to be performed where the repugnancy is clear.’ In its first 75 years, the U.S. Supreme Court struck down only two acts of Congress.3 However, Gewirtz and Golder looked at all decisions by the Rehnquist court since 1994 and found that it “upheld or struck down 64 Congressional provisions.” They then looked at these decisions to see how each justice voted, regardless of whether the vote was with the majority or a dissenting vote. They found that Justice Clarence Thomas, widely viewed as one of the most (some would say the most) conservative members, voted to “invalidate 65.63% of those laws.” Justice Stephen Breyer, considered a moderate member, was the least “activist” justice, voting to invalidate only 28.13%. Interestingly, Ruth Bader Ginsburg, who is considered the most “liberal” member of the court, only voted to invalidated those laws 39.06% of the time. Here are the findings:


Clarence Thomas                          65.63%

Anthony M. Kennedy                     64.06%

Antonin Scalia                              56.25%

William H. Rehnquist                      46.88%

Sandra Day O’Connor                     46.77%

David Hackett Souter                    42.19%

John Paul Stevens                        39.34%

Ruth Bader Ginsburg                      39.06%

Stephen Breyer                            28.13%


Therefore, from this data, it appears that the justices most often considered “liberal” (Breyer, Ginsburg, Souter, and Stevens) voted least frequently to overturn Congressional statutes, while those labeled “conservative” voted more frequently to do so. Therefore, the common belief that a liberal judge is an activist judge, and a conservative judge is restrained, is blatantly not true.


The impact of these findings is especially stunning for those who support the overturning of Roe v. Wade, the 1972 Supreme Court decision that legalized abortion, among other things. To overturn a prior Supreme Court decision is an activist decision. Thus, those who support overturning Roe are looking for activists, contrary to the conservative mantra of ridding our system of “activist judges.”


Just to confuse the issue, here’s a quote from Alexander Hamilton, one of the designers of the Constitution, in The Federalist Papers:4


“If, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.


“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”  [Emphasis added.]


Thus, it appears that it was the intent of the writers of the Constitution that the judiciary be independent and free to overturn prior court decisions and laws in order to protect the rights of individuals from “serious oppressions.”




1 The Rehnquist court refers to the court headed by William H. Rehnquist as the Chief Justice and comprised of John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, David Hackett Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer. This court was constituted in 1994.


2 Gewirtz, Paul & Golder, Chad. So Who Are the Activist? The New York Times, July 6, 2005.


3 Sunstein, Cass R. In Court v. Congress, Justices Concede One. The Washington Post, December 21, 2003.


4 The Federalist Papers, 2003, Signet Classic.



© The Issue Wonk, 2005



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