The Institute for Justice (IJ) has released a new study titled, “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.” One of the authors, Clark Neily, published a commentary in The Wall Street Journal summarizing its findings. According to IJ’s accounting, between 1954 and 2003, Congress passed 16,015 laws, only 104 of which were struck down by the Supreme Court. During the same period, state legislatures passed 1,209,075 laws of which 455 were found unconstitutional by the Supreme Court. Rather than paint a picture of judicial activism, the authors conclude that the empirical evidence shows a disengaged judiciary failing to meet its responsibility to protect the liberties of American citizens.
In reaction to the IJ report, Ed Whalen, of National Review Online, lamented “that the good folks at the Institute for Justice . . . continue their misguided campaign against the very real problem of ‘judicial activism.’” Mr. Whalen’s objection is not surprising. It seems that everyone—on both sides of the aisle—loves to hate judicial activism. But the folks at IJ have a point that lovers of liberty, whether on the left or the right, should heed.