Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?
Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. 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.'' Until 1991, the court struck down an average of one Congressional statute every two years. Between 1791 (the court's founding) and 1858, only two such invalidations occurred.
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We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H.W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
One conclusion our data suggests is that those justices often considered more ''liberal'' -- Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens -- vote least frequently to overturn Congressional statutes, while those often labeled ''conservative'' vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
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Chart:
Thomas: 65.63%
Kennedy: 64.06%
Scalia: 56.25%
Rehnquist: 46.88%
O'Connor: 46.77%
Souter: 42.19%
Stevens: 39.34%
Ginsburg: 39.06%
Breyer: 28.13%
I understand that political spinners are going to do what they do, but when the supposedly responsible members of our press are reducing everything to buzzwords and catchphrases they should at least define what they mean. With Alito it's just ridiculous to claim he's a practitioner of "judicial restraint."
Judicial Activism usually means nothing more than "Judgifying I don't like." In other words, it means nothing.