Is Sotomayor a Judicial Activist? New Studies May Shed Some Light

Is Judge Sonia Sotomayor a judicial activist? Just hours after Sotomayor's selection to fill the upcoming vacancy on the U.S. Supreme Court, special interest groups began the hunt for the dreaded activist in her, sifting decisions and speeches for evidence.

Soon she will answer her critics' drumbeat of accusations of judicial activism in her confirmation hearings -- a familiar drumbeat today wherever a judge or a nominee sits on the political spectrum.

Judicial activism means different things to scholars, politicians and special interest groups. But the term is often used in political rhetoric to identify decisions with which people disagree on ideological grounds and to pretend to criticize them in a neutral way, said Kermit Roosevelt of the University of Pennsylvania Law School and author of "The Myth of Judicial Activism: Making Sense of Supreme Court Decisions." "My preference would be for junking ," he said.

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After presenting the voting behavior of the justices in each of the categories assessed, the authors also produce a "final ranking" of activism, a single scale that ranks the justices from most to least activist, cumulating their scores in the different categories. The top five most activist justices were, from one to five: William Douglas, Hugo Black, Earl Warren, William Brennan and Thurgood Marshall -- liberal lions of the Warren Court. But coming in sixth behind Marshall was conservative Clarence Thomas.

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Based on preliminary data, Yung said, Sotomayor is "in the mainstream, clearly, and less activist than the average judge -- more deferential to district courts than the average judge among the five circuits I've looked at." And, he added, she is less activist relative to her 2d Circuit peers. The average judge's score in his data now is 10.40. Sotomayor scores an 11.71. The lower the score, the more activist the judge, Yung said.

http://www.law.com/jsp/article.jsp?id=1202431272514

on the Supreme Court tend to be more activist than the liberal judges. They are more likely to overturn laws enacted by Congress and State Legislatures.

We shouldn't even be using it, and when THEY do, we should challenge them on it.