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.