U.S. Supreme Court

Roberts court is less activist than its predecessors, at least by this measure


The U.S. Supreme Court led by Chief Justice John G. Roberts Jr. isn’t as activist as the prevailing wisdom might indicate.

The Roberts court is less activist than its three predecessors, at least when measured by its tendency to strike down laws, the New York Times reports.

A graphic summarizes the statistics: The Roberts court invalidated federal, state or local laws in just 3.8 percent of its cases, compared to 6.4 percent for the Rehnquist court, 8.9 percent for the Burger court, and 7.1 percent for the Warren court.

Similarly, the Roberts court overturned precedents in just 1.7 percent of its cases, compared to 2.4 percent for the Rehnquist court, 2 percent for the Burger court, and 2.4 percent for the Warren court. The research is based on an analysis by University of Southern California law professor Lee Epstein and Washington University law professor Andrew Martin.

Epstein warned the Times that it can be dangerous to draw conclusions from the relatively small number of decisions by the Roberts court. But she did acknowledge that “claims about the Roberts court’s activism seem overwrought.”

The Times cites some observers who think the court should be more activist. One of them is Clark Neily of the Institute for Justice, who said the phrase “judicial activism” has negative connotations. He suggests a different term—“judicial engagement.”

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