All the hoopla about a Constitutional Amendment to ban gay marriage rests, once again, on the issue of so-called Judicial Activism. The argument is that the Defense of Marriage Act, passed in 1996, is in danger of being overturned by "activist judges." The bill simply says that no state can be forced to recognize a gay marriage that occurred in another state. As far as I've been able to find, no one has challenged this as yet. The fear is, of course, that it will go to court and those pesky liberal, activist judges, who haven't even been elected, will rule that this is unconstitutional. Thus, change the Constitution.
"Judicial Activism" maintains that laws and prior court decisions (precedents) sometimes need to be overturned. "Judicial Restraint" maintains that the court should not overturn laws or court precedents. Justices subscribing to Judicial Restraint believe that elected representatives, not the courts, should change the laws, even if they do not agree with them, and that the U.S. Constitution should be strictly interpreted. Justices subscribing to Judicial Activism believe that it may not always be appropriate to apply prior court decisions to current issues and that there are times when laws need to be set aside because they violate the U.S. Constitution.
Much of the current discussion about "activist" and "restrained" judges pits one against the other. However, this is not necessarily the case. Frequently, judges will vote as an "activist" in one case and "restrained" in another. In fact, you will often hear and read from major media outlets the spurious relationships: that a conservative judge is a "restrained" judge, or a constructionalist, and that a liberal judge is an activist judge. But, it is not truly the case of conservative vs. liberal. It is much more complicated than that.
The truth is, in the U.S. Supreme Court, the conservative judges are the most activist judges. Paul Gewirtz, a professor at Yale Law School, and Chad Golder, one of its recent graduates, in a New York Times opinion piece, "identified one reasonably objective and quantifiable measure of a judge's activism, and . . . used it to assess the records of the justices on the [then] current [Rehnquist] Supreme Court."* They asked the question, "How often has each justice voted to strike down a law passed by Congress?" They used this as a measure of "activism" because, they said, "Declaring an act of Congress unconstitutional is the boldest thing a judge can do. . . In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act `of great delicacy, and only to be performed where the repugnancy is clear.' In its first 75 years, the U.S. Supreme Court struck down only two acts of Congress. (See Cass R. Sunstein) However, Gewirtz and Golder looked at all decisions by the Rehnquist court since 1994 and found that it "upheld or struck down 64 Congressional provisions." They then looked at these decisions to see how each justice voted, regardless of whether the vote was with the majority or a dissenting vote. They found that Justice Clarence Thomas, widely viewed as one of the most (some would say the most) conservative members, voted to "invalidate 65.63% of those laws." Justice Stephen Breyer, considered a moderate member, was the least "activist" justice, voting to invalidate only 28.13%. Interestingly, Ruth Bader Ginsburg, who is considered the most "liberal" member of the court, only voted to invalidated those laws 39.06% of the time. Here's the findings:
Clarence Thomas 65.63%
Anthony M. Kennedy 64.06%
Antonin Scalia 56.25%
William H. Rehnquist 46.88%
Sandra Day O'Connor 46.77%
David Hackett Souter 42.19%
John Paul Stevens 39.34%
Ruth Bader Ginsburg 39.06%
Stephen Breyer 28.13%
Therefore, from this data, it appears that the justices most often considered "liberal" (Breyer, Ginsburg, Souter, and Stevens) voted least frequently to overturn Congressional statutes, while those labeled "conservative" voted more frequently to do so. Therefore, the common belief that a liberal judge is an activist judge, and a conservative judge is restrained, is blatantly not true.
The impact of these findings regarding the fear that the courts will find the Defense of Marriage Act unconstitutional is very telling. The courts are now heavily seated with "constructionalist" judges. These findings indicate that they are more likely to overturn the Act. I suppose this is a case of "be careful what you ask for."