So Who Are the Activists? - New York Times

When Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is 'activist.' But the word 'activist' is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994...it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, [etc.] We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

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.

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.

So, what does this mean? 'Activist' today carries nothing of its true or supposed meaning (as outlined here). It truly, only means (now) that a judge rules in a way that the critic doesn't like.