Justices gone wild

Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries

But in practice, the main divide between liberal and conservative judges tends to be over the responsibilities of the federal government, not judicial activism per se. During the last decade of the Rehnquist Court, for instance, the conservative Clarence Thomas and the arch-liberal John Paul Stevens were almost equally willing to vote to strike down legislation. It’s just that Thomas was much more likely to rule federal actions unconstitutional, while Stevens was more likely to vote to overturn state laws.