The New York Times has conducted a study on Supreme Court judges. There’s a lot of kvetching among conservatives about “judicial activism,” defined as “striking down a law passed by Congress.” They looked at each justice’s complete voting record with regard to such cases, and found the following results:
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 %
From here on out, any Virginia political blogger who refers to centrist-to-liberal SCOTUS judges as “activist” has to put a dollar in the jar.
But the striking down of laws passed by Congress isn’t what many people who rant about “judicial activism” are complaining of. I think the (reasoned) complaints are often about: (1) SCOTUS striking down *state* laws and (2) pushes by judges and courts to change (a) traditional, Anglo-American jurisprudence and (b) American cultural values, through law.
For an instance of (1), see Romer v. Evans, where Kennedy, Stevens, Ginsburg, Souter, O’Connor, and Breyer made up a majority that declared unconstitutional an amendment to the Colorado state constitution. The amendment had been approved by the people of Colorado, by popular vote.
For an instance of (2)(a), see Justice Ginsburg’s speeches (and some of her dissenting and concurring opinions) that argue for American courts to consider, when crafting American law, the jurisprudence and constitutional law of foreign sovreigns.
For an instance of (2)(b), see Romer again, because the Colorado state constituional amendment was to have prohibited state law protections for LGBTQ folks. See, specifically, Scalia’s dissenting opinion.
Because, when the Supreme Court strikes down a law passed by Congress and enacted by the president, it is just filling a role that it’s always been expected to fill– a check on the other two branches of federal government. Folks complain, though, when they perceive the Court as interfering with state sovreignty or American cultural values. Arguably, none of the initial framers expected the Court to interfere with those things. (However, it is hard to argue–although many have–that the framers of the Civil War Amendments did not anticipate the Court acting as a check on the states.)
Furthermore, when the Court invalidates a federal law, there is always the constitutional amendment process for checking the Court. When the Court either invalidates a state law or shifts American jurisprudence, the constitional amendment process is probably unexercisable, realistically. The only solution then is to change the makeup of the Court. See 1937; and right now.
What “many people who rant about ‘judicial activism’ are complaining of” is judges who issue rulings that they don’t like. Not one person in a thousand in the United States could tell you what Carolene footnote four, not one in a hundred could tell you under what circumstances the SCOTUS may hear an appeal from a state case, and not one in ten could name more than half of the members of the Supreme Court.
I’ll certainly agree that some of the people who are concerned about “judicial activism” see it as an issue of federalism. But I’ll warrant that a great deal more people see it as a matter of the SCOTUS ruling against Congress.