522 Chapter 14Chapter 14 || The CourtsThe CourtsThe term “activist judges” often appears in the media. Sometimes the media
mistakenly assert that liberal justices are more activist than conservative justices. In
fact, though, that is not always the case. The current Court is quite conservative, but it is
also activist.^77 Two conservative justices, Kennedy and Thomas, have voted to overturn
laws passed by Congress 93 percent and 81 percent of the time, respectively, whereas
two of the most liberal justices, Breyer and Ginsburg, have taken the activist position in
only 42 percent and 48 percent of the cases.^78 The 1930s Court that struck down much
of the New Deal legislation was also conservative and activist, but the Warren Court of
the late 1950s and early 1960s was liberal and activist.A prominent legal journalist observed that the way the popular media describe
activism and restraint typically boils down to ideology: if you like a decision, it is
restrained; if you do not like a decision, it is activist. For example, Bush v. Gore, the
decision that decided the outcome of the 2000 presidential election, shows that
“most conservatives tie themselves in knots to defend judicial activism when they
like the results and to denounce it when they do not. As the reactions to Lawrence [the
gay sodomy case discussed in Chapter 4] and, earlier, Roe [the landmark abortion
case] have shown, liberals have been no less selective in their outrage at judicial
adventurousness.”^79 However, there are instances in which restraint reflects more than
ideology and preferences. Justice O’Connor, for example, took restrained positions
on abortion and affirmative action, despite her personal views against these policies.
Another prominent example of judicial restraint being more important than ideology
is Chief Justice Roberts’s position in the health care reform case; he said that some
decisions “are entrusted to our nation’s elected leaders, who can be thrown out of
office if the people disagree with them.” However, despite providing the pivotal vote
to uphold central provisions of the law, he made his personal views against the law
clear. “It is not our job,” he said, “to protect the people from the consequences of their
political choices.”^80
It is important to define activism and restraint in terms of the Court’s role in our
nation’s system of separated powers: Does the Court check the elected branches by
overturning their decisions through judicial review? If so, the Court has taken an
activist position.In a survey taken about the judicial
branch, most respondents were unable
to name any Supreme Court justices.
Just so you are not in danger of falling
into that category, as of the summer
of 2018 the justices were (front row,
left to right) Ruth Bader Ginsburg,
Anthony M. Kennedy (replaced by
Brett Kavanaugh after retiring), John
G. Roberts Jr. (chief justice), Clarence
Thomas, Stephen Breyer, (standing,
left to right) Elena Kagan, Samuel Alito
Jr., Sonia Sotomayor, and Neil Gorsuch.Full_15_APT_64431_ch14_488-529.indd 522 16/11/18 1:46 PM