Politicians speak hyperbole as their native tongue, but Supreme Court justices are normally more careful with their facts and opinions. Over the past two months, however, Justice Ruth Bader Ginsburg has behaved more like a politician than a judge with an exaggerated attack on the Roberts Court as “one of the most activist” in history.
Ginsburg made the criticism in a succession of media interviews over the past two months. The accusation is unsupported by the numbers and is all the more unseemly because Ginsburg paired it with a vow to stay on the Court, in effect as the leader of the opposition, as long as her physical and mental health hold up.
“Activist” is an inherently imprecise term, but Ginsburg provided an objective metric: laws overturned. “If you take activism to mean readiness to strike down laws passed by Congress, I think the current Court will go down in history as one of the most active courts in that regard,” Ginsburg told USA Today’s Richard Wolf.
By that criterion, the Roberts Court thus far has been less activist than the previous Rehnquist and Burger Courts. In eight terms, the Roberts Court has explicitly ruled federal laws unconstitutional in 12 cases or one-and-a-half per term. A compilation by the Library of Congress shows that the Rehnquist Court overturned 38 laws in Rehnquist’s 19 terms as chief justice: two per term. The Burger Court, in 17 terms, overturned federal laws in 31 cases just shy of two per term.
No doubt, the Roberts Court has more than a touch of judicial activism. With little respect for Congress or precedent, the Court in 2010 invalidated the federal ban on corporate and labor union spending in political campaigns, narrowed the Medicaid enforcement provision of President Obama’s Affordable Care Act in 2012, and nullified part of the Voting Rights Act as the 2012-2013 term ended in June.
Three of the other Roberts Court decisions overturning federal laws, however, apply straightforward First Amendment principles in striking down free-speech restrictions. Ginsburg joined all three. Two others, barely noticed in general news media, struck down provisions dating from the 1980s that in one case expanded federal bankruptcy jurisdiction and in another limited the evidence for federal judges to consider in criminal sentencing. Ginsburg dissented in the former and joined the latter.
Ginsburg also joined two more newsworthy Roberts Court decisions striking down federal laws: the 2008 decision to eliminate restrictions on habeas corpus rights for Guantanamo prisoners and this year’s decision to strike down the Defense of Marriage Act (DOMA). Ginsburg did not write separately in either case. But in oral arguments in the DOMA case Ginsburg made absolutely clear that she would vote to strike it down as unconstitutional discrimination against same-sex couples despite its nearly unanimous enactment by Congress.
In all, Ginsburg joined six of the 12 Roberts Court decisions striking down federal laws. And Ginsburg would have nullified one federal law that the Court, in 2007, upheld: the federal ban on so-called partial birth abortions.
In terms of state laws ruled unconstitutional, the Roberts Court pales in comparison to the two previous courts, according to a compilation by the legal web site Justia.com. The Rehnquist Court ruled state laws unconstitutional in 87 cases more than four rulings per term; the Burger Court count is 235 – or nearly 14 per term. The Roberts Court has overturned state laws so far only in 11 decisions fewer than one-and-a-half per term. Ginsburg joined five of those rulings, dissented in six.
Raw numbers are not the only measure of the Court’s activism. Even with relatively few decisions, the Supreme Court engaged in strikingly bold bursts of activism by striking down the post-Civil War civil rights laws in the 19th century, nullifying the federal income tax and other progressive legislation in the late 19th and early 20th centuries, and overturning major New Deal programs in a three-year span in the mid-1930s. The Warren Court’s statistics on laws overturned 17 federal laws, 128 state statutes understate the profound impact of its decisions outlawing racial segregation, mandating legislative reapportionment, and revolutionizing criminal procedure.
Ginsburg would have dissented from those early bursts of activism, but she surely would have joined the celebrated Warren Court rulings. And, tellingly, Ginsburg first came to national prominence by crafting the legal strategy that led the Court to strike down federal and state laws that discriminated on the basis of sex.
Ginsburg’s media offensive began with an interview to Reuters’ veteran Supreme Court watcher Joan Biskupic, in which the 80-year-old justice signaled her intention to stay on the Court despite any pressure from liberals to step aside to allow Obama to appoint a like-minded successor. She repeated that vow along with the criticism of the Roberts Court’s activism in successive interviews with USA Today, the Associated Press, the New York Times, and Bloomberg News.
By preempting talk of retirement, Ginsburg appears to be trying to make herself the indispensable justice for the liberal wing. But playing the outside game seems ill designed to gain influence with justices in the other bloc, especially Anthony M. Kennedy the only justice in the majority in all of the Roberts Court rulings striking down federal or state laws. With life tenure, however, Ginsburg is accountable only to herself and her own sense of how history will judge her two-decades-and-counting as a Supreme Court justice.