Responding to the many criticisms that have started to come out in advance of the Court’s decision in the PPACA cases, specifically those of Jeffrey Toobin and James Fallows, Jonathan Adler makes this observation:
The Supreme Court has not yet ruled against the individual mandate, and who knows whether it will. Yet this has not stopped commentators from making sweeping charges about the Court. Many commentators, for instance, are charging that the Roberts Court is “activist.” For some, “activist” is just a label for judges that make decisions they don’t like; one man’s “activist” is another’s constitutional paladin. For others, however, the label “activist” is used to describe a court that is particularly “active” in overturning precedent and invalidating laws, and thereby altering the course of the law.
(…)
The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens). This does not mean the Roberts Court’s decisions are correct and there are exceptions to every rule. Nor does the court’s past conduct necessarily predict the future. It does, however, mean that when one looks at the Court’s overall behavior (and not at a single case) it is inaccurate to say that this Court is particularly “activist” in moving the law in a conservative direction by overturning precedents and invalidating federal laws.
The New York Times anaylsis is a 2010 report by Adam Liptak that makes the following observations:
In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953.
The courts led by Chief Justices Warren E. Burger, from 1969 to 1986, and William H. Rehnquist, from 1986 to 2005, issued conservative decisions at an almost indistinguishable rate — 55 percent of the time.
(…)
In some ways, the Roberts court is more cautious than earlier ones. The Rehnquist court struck down about 120 laws, or about six a year, according to an analysis by Professor Epstein. The Roberts court, which on average hears fewer cases than the Rehnquist court did, has struck down fewer laws — 15 in its first five years, or three a year.
Adler managed to dig this out of the data accompanying the article:
– The Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term.
– The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term.
As Adler points out, this data comes from 2010 but there has not been any real radical change in the manner in which the Court has ruled during the ensuing two years. So, the idea that the Roberts court is some radical entity that has been overturning precedent and striking down laws willy-nilly simply isn’t true.
