The Myth of Judicial Activism

by Clark Neily

Wall Street Journal
September 28, 2011

For decades, politicians and the public have decried "judicial activism." Conservatives denounced the Supreme Court as "activist" when it allowed Guantanamo detainees access to federal courts in Boumedienne v. Bush, while liberals did the same when the court struck down limits on corporate political speech in Citizens United.

But is it true that there are a lot of judges making law instead of enforcing it? According to Government Unchecked, a new report from the Institute for Justice's Center for Judicial Engagement, the answer is emphatically "No."

If lawmaking were a sport, how often would we expect politicians to put the ball in the constitutional basket versus putting up constitutional bricks? In principle, the Supreme Court's strike-down rate should equal the rate that the other branches of government exceed their constitutional authority. Given how often it is accused of activism, one might think the Supreme Court's strike-down rate must be off the charts. In fact, the opposite is true.

Over the 50-year period from 1954 to 2003, Congress enacted 16,015 laws, of which the Supreme Court struck down 104—just two-thirds of 1%. The court struck down an even smaller proportion of federal administrative regulations—about 0.5%—and a still smaller proportion of state laws: 455 out of one million laws passed, or less than one-twentieth of 1%.

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Read the Report (PDF)