One of the great loaded buzzwords from the Religious Reich has been the idea of “activist judges” who are “unaccountable to the public” and are “legislating from the bench”. It’s pretty easy to see what the American Taliban considers an “activist” — it’s someone who makes a ruling counter to the beliefs of the fundamentalist evangelicals, like honoring the private medical decision of a husband and wife (Terri Schiavo), understanding that equal protection under the law applies to gay people, too (gay marriage, civil unions), reiterating that government should remain neutral with respect to religion (the Ten Commandments cases), and allowing women to maintain control of their reproduction (name any abortion case). However, you never hear the fundies make a measurable case or solid definition for what “activist” means (maybe because they dislike statistics and science so much, or maybe because the word “activist” never appears in the Bible).

So here’s a great op-ed from the New York Times that does the dirty work for them by defining a measurement for “activist” and measuring each justice against that standard.

How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That’s because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. … Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions.

Thomas 65.63%
Kennedy 64.06%
Scalia 56.25%
Rehnquist 46.88%
O’Connor 46.77%
Souter 42.19%
Stevens 39.34%
Ginsburg 39.06%
Breyer 28.13%

One conclusion our data suggests is that those justices often considered more “liberal” — Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens — vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

So, of course, this can’t be a reasonable measure, because we all know that Bush dreams of a Supreme Court full of Thomases and Scalias, and Bush hates activist judges. Instead, this must be one of those cases where the Supreme Court must be “activist” in order to overturn bad unconstitutional law coming from the Republican-controlled Senate, House, and Oval Office. In other words, it’s Hillary Clinton’s fault… somehow…