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)

Most of you have probably heard the Miers nomination has been withdrawn. Unfortunately, it looks like it was withdrawn for what I think are the wrong reasons. Social conservatives balked at her lack of zealotry on the abortion issue. Other conservative groups were concerned the lack of an identifiable judicial or governing philosophy. What’s interesting in all of the different reasons cited by various groups for opposing her nomination, not one comment is made by anyone about why Bush would’ve nominated someone so universally reviled. Wouldn’t answering that question give us more insight than anything that happens in the almost farcical confirmation hearings?

The ends don’t justify the means because the means have consequences. Whether it’s fighting the war on terror or trying to “improve” education, the Bush administration has chosen very peculiar paths to get where they are. The choices Bush has made obviously will affect his legacy. What will be that legacy? Dan Gillmor suggests one:

Abortion was never the issue that mattered to me. I take it for granted that Roe v. Wade will be overturned by the court as Bush and company remake it. Some state governments will ban it afterward; most will keep it legal.

I was always more worried about the above-the-law question — the insistence by this administration that it can make up new laws when it comes to people it claims to be terrorism suspects. What did Miers do in Bush’s government, which basically claims that the president or his agent can lock any of us up indefinitely and without access to a lawyer?

She was part of the government that has asserted dictatorial authority. That is more scary than her right-wing views on abortion, by far.

I also think that progressive Americans (as well as pragmatic Americans) that want sensible policies would do better than focusing on the abortion issue. The court is going to be pro-business to a fault. How they reinterpret the roles of the branches of our government will probably remake our country in several ways. More than the social issues, this interpretation will be the legacy of this administration and the Roberts court. At best, they’ll be a passive court, deferring to the other branches in all but the most obviously constitutional cases. The worst case is real judicial activism, not the straw man that the right wing throws up all the time. Things like Bush v. Gore which was a travesty regardless of whether you liked the outcome or not.

I’m really worried that left wing folks and progressives are missing the boat on convincing those of us closer to the center that these issues are serious. For example, Atrios, who has a sizable reach among progressive and left wing activists in addition to the typical Democratic fold, only comments so far as to misrepresent Ann Coulter’s gloating on CNN. There are so many good examples of how social conservatives are hoping for judicial activists that he didn’t need to misrepresent Coulter. Don’t get me wrong, I think she’s a zealot and horribly unreasonable and unethical in her own writing. That still doesn’t excuse getting her objections to the nominee wrong. Especially when, for once, she’s not completely off-the-wall bonkers.

Update: I edited my post as it was almost incoherent in places.