It’s a common phrase these days: “Activist Judges.” What does it mean? Conservative activists and President Bush have defined it, at least in part, as judges that make law, as opposed to interpreting it. Sounds good so far, but to get to the heart of it, we should examine the definition of “make law.” How do judges make law? Prof. Paul Gewirtz and Chad Golder of Yale Law defined it in the Times as striking down a law passed by Congress. That would fit the definition of “legislating from the bench” pretty well.

Their research finds an interesting conclusion. Here are the percentage of times since 1994 that a particular justice invalidated a Congressional act of the 64 provisions that have made it in front of them.

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%

They conclude:

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.

Of course, the definition is perhaps a bit narrow. The hyper-libertarian/conservative/federalist Volokhians would be more concerned about the court stepping into matters better left to the state. It might be interesting to see a tally of the times each justice voted to invalidate a state or local provision rather than just acts of Congress. I suspect the results will be less stark.

In the end, I guess, Atrios gets the definition right:

Judicial Activism usually means nothing more than “Judgifying I don’t like.” In other words, it means nothing.

Definitely.

(Times article found via Atrios)