Activist Courts

I am a political scientist who has a law degree. One of the things I like to do is bring empirical data and use it to illuminate issues on law and courts. Today I want to briefly discuss the concept of the “Activist Court,” which is frequently used as a pejorative term, as in “that activist court (or judge) thwarts the will of the people.” And that’s a mild statement compared to many.  In fact one of my colleagues has a cartoon on her door with the title “Bobby Comes out of the Closet.” The cartoon shows a boy speaking to his obviously shocked parents as he tells them “Mom and Dad, I think I want to be an activist judge.”

The cartoon highlights a dilemma of governance. In the American political system, courts have the power of judicial review – the most gripping example of which are decisions to declare unconstitutional laws of Congress and the state legislatures. The conflict between elected representatives and the appointed judiciary is most pronounced in these situations, and the Court’s decision is usually final. However, when they exercise this function, courts are criticized as Activist courts.

Of course the real issue is, how often do courts actually exercise this function? For example, let’s look at the Supreme Court. A colleague and I used the Supreme Court database (2010 v.2) to examine every instance of when the Court overturned a federal, state or municipal law as compared to the overall docket of the Court. The database runs from 1953 through 2010, which means we miss the Roosevelt era, but include the Warren Court and the Rehnquist Court. We present our results in the Table below, which comes from our book Judging Law and Policy: Courts and Policymaking in the American Political System. Robert M. Howard and Amy Steigerwalt, Routledge: New York, NY, (August, 2011)

 

Declarations of Unconstitutionality by Supreme Court 1953 – 2009
Decade

Constitutional

Federal Uncon

Muni Uncon

State Uncon

Total

1950′s

96.34%

0.71%

0.95%

2.01%

100.00%

1960′s

91.98%

1.07%

0.47%

6.48%

100.00%

1970′s

91.31%

0.78%

0.78%

7.13%

100.00%

1980′s

93.52%

0.62%

0.62%

5.24%

100.00%

1990′s

92.95%

2.15%

0.69%

4.21%

100.00%

2000′s

96.35%

1.58%

0.73%

1.34%

100.00%

Total

93.27%

1.07%

0.68%

4.97%

100.00%

 

As one can see, in terms of overturning federal law, the Supreme Court is indeed restrained throughout the almost 60 years of data. The so-called “activist” Warren Court rarely overturned federal law, while the Rehnquist Court was indeed the “most activist court” if one examines only federal law, as it overturned federal laws at twice the rate of the Warren Court. The Warren Court, however, did overturn state laws at a higher rate than subsequent courts, but again, the rate of overturning of laws amounted to less than one in every ten cases the Court decided.

More by | Robert Howard Robert Howard , Law.com Contributor
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