December 10, 2018, revealed something about the Court: It will be conservative in some ways, but probably not on social issues.
When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.
In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.
So which of these justices most often votes to strike down laws “passed by the people”? The answer is
Justice Ruth Bader Ginsburg.
The details of these voting patterns are laid out in my forthcoming article in the Notre Dame Law Review (previewed here). Although the differences among the justices in their voting to strike down laws are relatively small, Ginsburg has voted to strike down laws in nearly half the cases in which the constitutionality of a statute is in question. Alito is among the least likely justices to cast such a vote, thinking the statute is invalid in just over a third of the cases he considered.
So how to make sense of Leahy’s misidentification of which justice is the “most activist . . . we have right now”? There’s definitely a “mote that is in thy brother’s eye” quality to the evaluation of judicial activism. When the Court strikes down laws with which Leahy disagrees, he is likely to issue a press release applauding the justices for making the right call. When they strike down legislation that he has helped push through Congress, he is more likely to take to the podium to denounce the Court for “substituting its own judgment” for that of the legislature’s. Unsurprisingly, Ginsburg and Leahy are more often on the same page than are Thomas and Leahy. When Leahy expresses frustration with a “very, very activist, conservative” Court, he really means just the “conservative” part not the “very, very activist” part.
Despite the rhetoric of judicial activism, Leahy and most other politicians care far more about case outcomes than the judicial role. And for the most part, the justices probably do as well. The justices could vote to strike down laws all day long and would draw nary a peep of complaint from the senators – so long as they struck down the right laws.
It probably also matters to senators like Leahy which legislature is getting gored by the Court. The true test for judicial activism for Leahy might be whether his own institution is likely to find itself on the losing side of a case, not when “a law passed by the people” has been rejected. Justice Thomas is fairly likely to appear in majorities striking down acts of Congress, while Justice Ginsburg is much less likely to vote against the constitutionality of a federal statute. Their roles reverse, however, when it comes to cases involving the constitutionality of state laws. Ginsburg is frequently in majorities striking down those laws (including high-profile issues and narrow majorities), while Thomas hangs back.
Finally, the judicial votes that actually have the effect of striking down a law are undoubtedly more visible than those that do not. In the past few years, Thomas has been significantly more likely than Ginsburg to be in the majority when the Court strikes down a statute. But then he’s also more likely to be in a majority upholding a statute against constitutional challenge. Ginsburg is more likely to take her shots at legislators from dissent. Ginsburg would like to strike down far more laws, but Justice Anthony Kennedy (as the crucial fifth vote) won’t let her. While Justice Alito is the least likely to argue from dissent that the Court should have struck down a statute, Justice Ginsburg is among the most likely to be in that position. Considering both the many times when Ginsburg is part of a majority invalidating a law and the votes she cast calling for a law to be struck down, her activist credentials are second to none.
If Leahy really wanted to support a less activist Supreme Court, he should vote to confirm more justices like Samuel Alito and would urge presidents to look at Alito as the model justice. Alito has been among the least likely to vote to strike down a law – substantially so when it comes to state laws. If the Court is upholding a law against constitutional challenge, Alito is almost always in that majority. But somehow, I doubt Leahy regrets his vote in favor of a filibuster to block consideration of Alito’s nomination to the high bench.