Scalia and Thomas "More Activist"

So says an editorial in today's New York Times, based on Professor Lori Ringhand's forthcoming study of Supreme Court voting records from 1994-2005. Ringhand reached her conclusions by employing a neutral definition of "activism" (activism, n. Voting to overturn a federal or state law or a Supreme Court precedent). Undermining ceaseless conservative rhetoric on the issue, Ringhand found that- "conservative justices" proved "far more willing than the liberals to strike down federal laws ... substituting their own judgment for that of the people's elected representatives." Moreover, they were "far more activist" when it came to "overturning the court's own precedents." On all criterion, the winners of Ringhand's most activist judge award were Justices Scalia and Thomas. This, of course, is conservatives' dirty little secret - and one that's not been very well kept of late. Yale professor Paul Gewirtz reached conclusions similar to Ringhand in a study he did last year. The Times properly concluded that while there may be nothing wrong with courts striking down unconstitutional laws, it is wrong "for one side to pretend its judges are not activist, and turn judicial activism into a partisan talking point, when the numbers show a very different story."