The Roberts Court Is One of the Least Activist Courts of the Modern Era

Now, I've got to say right off the bat: I don't know what the outcome of the case will be and neither does anybody else except the justices, their clerks, and a half-dozen other people. What follows is merely a reply to liberal idiocy, not an implied prediction of the outcome of the case. We may not win.

In their effort to preemptively attack the credibility of the Supreme Court in general and Chief Justice Roberts in particular, liberals have started spreading a stupid and easily refutable lie.

It started with that James Fallows character who claimed the Supreme Court was about to perpetrate a coup. He claimed that Justices Roberts and Alito in particular, “actively second-guess and re-do existing law.” Jeffrey Toobin, CNN's chief law analyst who completely shit the bed predicting that no lower court would even pretend that the Obamacare lawsuits had merit, also oozed this lie, claiming that the Roberts Court has been "eager" to overturn legislatures. This lie was ultimately repeated by Politico's dim and shallow Roger Simon and now it is ubiquitous and unchallenged among liberals.

Yes, in about 48 hours liberals managed to cook up this claim and now they're all scurrying around repeating it like a bunch of lemmings. There's just one problem: it is completely untrue.

This is not a matter of opinion. We can actually count how often various Courts have "re-done existing law" and "overturned legislatures." And such a count reveals that the Roberts Court doesn't overturn as many precedents as its three predecessors. The Roberts Court doesn't even come close to overturning the number of laws that its three predecessors did.

Here's the data on the first five years of the Roberts Court (gleaned from this NYTimes infographic):

(1) The Warren, Burger, and Rehnquist Courts overturned precedent decisions at an average rate of 2.7, 2.8 and 2.4 per term, respectively. By contrast, the Roberts Court overturned precedent only at an average rate of 1.6 per term.

(2) The Warren, Burger, and Rehnquist Courts overturned laws at an average rate of 7.9, 12.5, and 6.2 laws per term. By contrast, the Roberts Court struck down only 3 laws per term.

Just three laws per term! Far, far from being "eager" to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in "second-guessing laws," as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts' well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)

Should the mandate be overturned today, liberals will repeat their lie endlessly in order to cast doubt on the legitimacy of the Supreme Court and to tarnish the Chief Justice's good name. You know better. Do not believe this sad, angry lie. And do not let some foolish lemming repeat it in your presence. The truth is that the Roberts Court has been unusually restrained in overturning laws when compared to its predecessors.

posted by Gabriel Malor at 07:30 AM

| Access Comments