IJ on “The Myth of Judicial Activism”

The Institute for Justice has a new report examining the rate at which the Supreme Court overturns laws and regulations. Clark Neily summarizes in the WSJ:

Over the 50-year period from 1954 to 2003, Congress enacted 16,015 laws, of which the Supreme Court struck down 104—just two-thirds of 1%. The court struck down an even smaller proportion of federal administrative regulations—about 0.5%—and a still smaller proportion of state laws: 455 out of one million laws passed, or less than one-twentieth of 1%.

In fact, on an annual basis, the Supreme Court struck down only three out of every 5,000 state and federal laws passed. Compared with the explosive growth of government, the Supreme Court’s efforts to impose constitutional limits on the legislative and executive branches are barely blips on the radar screen. . . .

Our Constitution imposes significant limits on government power—limits that are not being properly enforced because too many judges have adopted an ethic of reflexive deference toward the other branches of government. What America needs instead is a properly engaged judiciary that understands the importance of constitutionally limited government and refuses to be cowed by empirically baseless accusations of judicial activism.

UPDATE: Two quick points: Not every post or link is an endorsement. If I link or excerpt something without editorial comment, the only sure inference to draw is that I found the item interesting and thought it would be of interest to the VCs readers. Given the comment thread below, I was clearly correct that the VCs readers would find this worth discussing.

As for the substance, there are many reasons to be suspect of the methodology of this study, some of which are readily apparent. For example, this study does not account for the fact that a Supreme Court decision striking down one statute might well have the effect of invalidating many more. To give just one example, in INS v. Chadha the Supreme Court struck down the unicameral veto provision contained in a single statute, the Immigration and Nationality Act. Yet by striking this down, the Court effectively invalidated similar provisions contained in over 200 other federal statutes. In other words, this one case effectively invalidated more statutory provisions than the total number of statutes the report identifies as having been struck down between 1954 and 2003.