The Facts About Judicial Activism


The Institute for Justice released a new report today titled "Government Unchecked: The False Problem of 'Judicial Activism' and the Need for Judicial Engagement." It's a sobering read. As authors Clark Neily and Dick Carpenter observe, "courts are allowing a substantial amount of unconstitutional regulation to go unchecked." How substantial an amount? Consider the following numbers taken from the report, which reveal just how rare it is for the judiciary to act as a check on government overreach:

  • Congress passed 16,015 laws from 1954 to 2003. The Supreme Court struck down 104—or just two-thirds of one percent.
  • State legislatures passed 1,029,075 laws over the same period. The Court struck down 455—or less than one twentieth of one percent.
  • The federal government adopted 21,462 regulations from 1986 to 2006. The Court struck down 121–or about a half of a percent.
  • In any given year, the Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.
  • The Supreme Court overturned earlier precedents in just two percent of the cases it considered from 1954 to 2010.

Read the full report here. For more on the debates over judicial activism and judicial restraint, see here and here.

NEXT: Government Spending In Your Own Words

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Im gonna go out on a limb and say Obamacare gets ruled constitutional.

    1. yep SCOTUS will not strike insurance regs down…which would probably also invalidate the employer mandate.

  2. I’m so sick of people overstating the problem of goat eyeball rape. Less than one-half of one-tenth of one-hundredth of one percent of all *sex* involves goat eyeball rape.

  3. Why do we even have those nine fools if they aren’t going to do their job. All they do is defer to the legislature. In their minds, if something isn’t explicitly forbidden by the Bill of Rights, then it must be ok. If something is explicitly forbidden by the Bill of Rights, then it’s probably still ok.

    1. The educational system has fallen so far that they do not understand their own role as a vital check on the other two branches of government.

  4. …courts are allowing a substantial amount of unconstitutional regulation to go unchecked.

    Yeah, no fucking shit. But Congress loves to delegate its legislative responsibilities to regulators and the courts.

    If it was up to me, no legislation would be enacted until it passed constitutional muster as ruled by the judicial. Maybe the courts would start taking their role more seriously if they couldn’t hide behind the facts of a specific case.

    1. If it was up to me, no legislation would be enacted until it passed constitutional muster as ruled by the judicial.

      Well, duh, that’s why we need lawywer presidents.

  5. The fact that voters keep reelecting the law givers is cover enough for judges to abdicate their responsibility. Hopefully, Kennedy will take into account the fact that this time the voters overwhelmingly chose a new breed of congressman who are outspoken in opposition to the mandate.

    1. I have a new product out, it’s called Hope On A Rope

      1. That’s not funny.

        1. It’s funnier that some of your schtick.

  6. Congress passed 16,015 laws from 1954 to 2003. The Supreme Court struck down 104?or just two-thirds of one percent.

    To be fair, wouldn’t you need to know the number of cases submitted to the court from this number to determine the correct percentage of laws they overturn versus what they are are actually presented with the opportunity to overturn?

    1. In a word, NO.

  7. We would have to know the number of laws struck down in lower courts and not appealed to the Supreme Court, or where the Supreme Court refuses to review the case. But yes, I think the courts declare too many laws to be valid.

  8. General Welfare Bitchez. If a power isn’t specifically restricted, then it’s granted.

  9. Does this mean that if Roe v. Wade struck down 30 state laws (I don’t know the real number) then that counts for 30 out of the 455? Maybe the Court racked up a lot of the count in only a few cases.

  10. Sobering study, yes, but not necessarily informative for a wide variety of reasons.

    First, they simply refer to “laws passed.” It’s possible for a law to have multiple clauses and parts, and have the court stike down only parts of the law, leaving the rest intact, i.e. the current status of the individual mandate in Obamacare. It’s unclear if that would be counted as an upheld law or an overturned one in this study.

    Second, while they aggregate all the laws written at a local, state, and federal level, they look at only one source to strike down laws, the Supreme Court. Like van Haalen points out, we’d need to know about the overturn rates from the Fed Circuit appeals, the Federal Appellate courts for each individual circuit, the individual state supreme courts and their corresponding appellate courts. I imagine the overturn rate would look substantially higher in that review, although still probably not as high as warranted.

    Third, in order to be a truly comprehensive study of the need for judicial activism, the study would also have to account for the number of laws legislators or voters overturn on their own without the need for judicial interference. Of course, that method actually involves passing a new law that supersedes the old law, which would therefore likely be counted as passing a new law for purposes of this study.

  11. Another methodology problem was raised by Jonathan Adler at The Volokh Conspiracy: this study doesn’t properly account for decisions that only consider, and thus only directly overturn, a single law, but in effect overturn hundreds, if not more. In his example, INS v. Chadha only overturned the legislative veto found in a specific immigration statute, but substantially similar provisions were contained in over 200 federal statutes, meaning Chadha effectively struck down far more than just one law.

  12. I think people should put their faith in nullification instead of rubber-stamping courts.

  13. Why in the world would you ONLY look at the Supreme Court? It handles a tiny fraction of the total caseload in American courts at the state and federal level.

Please to post comments

Comments are closed.