An addendum to the previous post: when Zywicki says that:
I think this cultural temperament may reflect itself in a anti-elitist streak rebelling against the arrogance of the Supreme Court and the federal judiciary and a humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.
he’s setting himself up for more trouble than he’s bargained for. Consider this recent NYT article.
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
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 %
One conclusion our data suggests is that those justices often considered more “liberal” – Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens – vote least frequently to overturn Congressional statutes, while those often labeled “conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
Whatever conservative justices are showing here, it sure ain’t “humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures.” But as Atrios says, the conservative critique of “Judicial Activism” usually reduces down to a rather less impressive sounding hostility to “Judgifying I don’t like.” If Zywicki genuinely thinks that lack of judicial deference to Congress is a fundamental problem, he should take the obvious next step – start pushing for a new Justice along the lines of Ginsburg or Breyer rather than Thomas or Scalia. Need I say that I’m not holding my breath?
Update: Orin Kerr and others in comments make a good point that I hadn’t considered. To the extent that conservative legal thought is more skeptical of federal law and left wing legal thought more skeptical of state law, Golder and Gewirtz’s analysis (which deals only with rulings overturning federal law) probably stacks the decks. But while this may mean that the snark in my final two sentences was unjustified, it doesn’t give a free pass to conservatives by any stretch. The conservative expressed preference for state law over federal law is hardly unrelated to the fact that (a) the state laws at issue are frequently substantively closer to conservative preferences than are federal laws, and (b) that a strong emphasis on states’ rights makes various forms of economic and political regulation much less feasible in an interconnected economy of 50 states. So too for liberals of course, but the point is that humility in the face of democratic legislatures isn’t the driving force here – it’s calculations about substantive outcomes. The political science literature here has very strong evidence indeed on how judges’ ideologies affect their rulings – Epstein and Segal’s Advice and Consent finds that justices’ ideology is a “remarkably good predictor” of how they will vote on the Supreme Court. And indeed when issues of state law versus federal law collide with the substantive ideological desires of judges, the latter frequently lose, as witnessed by Bush v. Gore which Epstein and Segal correctly describe as a “thinly veiled attempt on the part of the Court’s conservatives to put George W. Bush in the White House.”