Justice Ginsburg on “Judicial Activism” in the Roberts Court

Justice Ruth Bader Ginsburg believes the Roberts Court is “one of the most activist courts in history,” according to a widely cited interview with the NYT‘s Adam Liptak.   “Activist” is a slippery label, often indicating nothing more than disagreement with a Court’s decision in a given case.  fortunately Justice Ginsburg provided Liptak with a definition.  Specifically, Ginsburg told Liptak that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”  This is one way to define judicial activism, but if this is the definition Justice Ginsburg wants to use, her accusation falls wide of the mark.

If activism is “measured in terms of readiness to overturn legislation,” the current Court is not one of the “most activist courts in history,” at least not compared to others of recent memory.  As Liptak’s own reporting has shown, the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts.  Liptak wrote his earlier story in July 2010, but the conclusion still holds.  Since 2010 the rate at which the Roberts Court has struck down federal legislation has actually declined.  According to the same report, the Roberts Court overturns precedent at a lower rate than did prior post-War courts.

If in calling the Roberts Court  “one of the most activist courts in history,” Justice Ginsburg meant that the Roberts Court is more activist than, say, the seriatim or Marshall Court, she has a point. If she meant to imply the Roberts Court is any more “activist” than any other court in the past 60 years, she doesn’t.

Justice Ginsburg’s apparent concern at her colleagues’ propensity to invalidated federal legislation is curious for another reason: She votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy.  She’s not only joined numerous opinions in which the Roberts Court has struck down federal laws (e.g. Windsor, AID v. AOSI, AlvarezStevens) , she’s dissented in cases — such as Holder v. Humanitarian Law Project and Salazar v. Buono — in which legislative action was upheld.  I’m fairly confident Justice Ginsburg was one of four justices voting to overturn the citizenship transmission law at issue in Flores-Villar v. United States, in which the Court split 4-4 . As a consequence, had Justice Ginsburg’s view prevailed in every case heard in the past four terms, just as many federal law would have been struck down.  So much for her allegation of “activism.”

Looking at the actual behavior of the Roberts Court, it becomes clear that Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too “activist” (as she herself defines the term). Indeed, in many cases, Justice Ginsburg believes the Court is not “activist” enough, and too willing to uphold federal action. There are those who believe the the Supreme Court should be more deferential to Congress across the board, and thus less “activist,” but Justice Ginsburg is not one of them.  She just disagrees with her colleagues about when the Court should scrutinize legislative action, and when it should defer.