Dreaded activist judges

Just about the nastiest insult some partisans can muster to hurl at the opposition's judge candidates during campaigns or confirmation hearings is "judicial activist." This election has been no different, and even decent judges go to great lengths to reassure the public they aren't wild-eyed activists.

The term is uttered with almost the same contempt as racial or religious slurs. Now along comes University of Kentucky law professor Lori A. Ringhand and she had the nerve to actually examine the voting behavior of justices on the Rehnquist Supreme Court from 1994 to 2005, when there were no changes in the line-up. For her study to be published next spring in Constitutional Commentary, she measured how many times each justice voted to invalidate federal laws, how many times each voted to overturn state laws, and how many times each voted to overturn existing court precedents. She found the "conservatives" were much more likely than their "liberal" counterparts to invalidate federal law and overturn precedent, while the "liberals" were more likely to invalidate state laws. Not surprisingly, they were all "judicial activists," only in different cases, sometimes contrary to their presumed ideologies.

Ringhand concluded that justices of all ideological persuasions and interpretive leanings routinely use their power of judicial review to overturn the actions of other branches of government and of prior courts. Her study goes on to uncover some surprising results.

So does that mean the political parties need to stop using "judicial activist" as a term of derision, and wary voters ought to revise the question for candidates to the next level: "Exactly what kind of judicial activist are you?"