The Scarlet Letter: A is for Activist

Justice Ruth Bader Ginsburg tells it like it is:

With the departure of Justice John Paul Stevens in 2010, Ginsburg became the leader of the four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide, 5 to 4, with the usual suspects,” she said.

The last two terms, which featured major decisions on Obama’s health care law, race, and same-sex marriage, were, she said, “heady, exhausting, challenging.”

She was especially critical of the voting rights decision and the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’ power to regulate interstate commerce.

In general, she said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

The next term, which begins Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.

The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation, but Ginsburg, who dissented, did not sound optimistic.

“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”

Justice Ginsburg has it right, as I have argued recently, with this past term (October 2012 term) being particularly egregious.

While I agree with Justice Ginsburg on this, though, some perspective is necessary; the sheer number of invalidations has not radically increased, according to Lee Epstein, who writing in 2012, concluded that, overall, while liberal justices have grown more reluctant to strike down conservative laws or liberal laws the converse holds with in terms of the number of cases striking down laws deemed "liberal" the "right wing of the Court ... has grown somewhat more opportunistically restraintist (activist)" and less willing to strike down conservative laws. But numbers do not tell the whole story, and Ginsburg is correct that the right wing of the Court has aggressively overturned precedent and disregarded ordinary mores of constitutional construction in recent years to advance its policy agenda than any Court in my lifetime.