Many of those paying attention recognize the rather meaningless phrase for what it is, but Paul Gewirtz and Chad Golde decided to evaluate the sitting supreme court for levels of "activism" using a single, neutral and consistent standard, "How often has each justice voted to strike down a law passed by Congress? "
The results certainly won't please the right-wing punditocracy but should not surprise those who see through the term for whiffle ball bat it is.
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.The troubling aspect of this study is not that the truth is not on the side of the critics, but that the right's use of the phrase has so permeated the public that many individuals toss of the phrase, "activist judge" without any real knowledge of what they are talking about.
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.
There are certainly more measures than the one used above, but in the context of how it is used by conservative commentators (it is often used neighboring the implication that the judges are overturning the "will of the people" by overturning legislation) this is perhaps the most accurate measure of who are the "activist judges" among us.