Most Conservative Court? No - Least Activist Court

Posted: Aug 01, 2010 6:56 PM
The New York Times wrung its hands together last week about how the Roberts Court has been the "most conservative court in decades." How can we possibly survive this brave new world in which conservatives rule from the bench with an iron fist? Adam Liptak's NYT article provoked thoughful nods from leading liberals.

Well, not so fast. Because there's a difference between a Court that reverses precedent and overturns laws and a Court that simply shows a modicum of restraint and deference to legislators when it comes to the Constitution. And the Roberts Court, it turns out, isn't necessarily "conservative" but is a "non-activist" court. Jonathan Adler does some legwork:

This distinction is important because the data presented by Liptak suggests that the Roberts Court is such a “conservative minimalist” court. Indeed, it appears to be the most restrained – or least “activist” (if “activism” is defined as willingness to overturn federal statutes or prior precedents) – Court since World War II. According to the data presented... the Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. The record on striking down laws shows a similar pattern. The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term.

Turns out it's not about an evil conservative takeover of that hallowed Left-wing institution of the Supreme Court, but about showing a little restraint when it comes to deciding cases and refusing to wade into judicial activism.