Linda Greenhoiuse has a terrific piece in yesterday's opinionator about the conservative campaign for a more activist conservative judiciary. She quotes from a report from the Institute for Justice, a libertarian group, entitled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." According to this report, the usual dichotomy between judicial activism and judicial restraint is a false one:
“Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”
To the Institute, this means that courts are not doing enough. For example,
Of the 15, 817 new laws enacted by Congress between 1954 and 2002, the Court only struck down 103 (two thirds of one percent)
Of the 1,006,649 laws enacted by state legislatures, the Court struck down only 452 (less than one twentieth of one percent)
Of the 21,462 regulations enacted by the federal government between 1986 to 2006, the Court only struck down 121 (half of one percent)
Of the cases it considered between 1954 and 2010, the Court overturned earlier precedents in only two percent of the cases
From these numbers, the authors of the report conclude that "the image of rampant judicial activism is false." Needless to say, this also means no more rationality review for economic regulations.
I know, I know. We are all shocked.
I am not sure whether the authors intend for us to take their report seriously. But I have a few questions:
Could anyone -- and I do mean anyone -- possibly fall for this? (anyone, that is, other than the two members of the 11th Circuit panel that struck down the individual mandate in State of Florida v. United States Department of Health and Human Services? -- check out page 104).
How long until Senators Sessions and/or Hatch manage to incorporate the term "judicial engagement" into their attacks on progressive judicial nominees?
Is it no longer possible to have a real debate about the role of the courts in democratic society without playing these silly games?