How Activist Is the Supreme Court?

WASHINGTON — JUSTICES Antonin Scalia and Ruth Bader Ginsburg are ideological antagonists on the Supreme Court, but they agree on one thing. Their court is guilty of judicial activism.

“If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other.”

But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years....

It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent....