An Adam Liptak piece in Sunday's New York Times says that the Roberts Court is less activist than any of its predecessors in the last 60 years, as measured by the rate at which the Court overturns statutes. Rick Hasen at Election Law Blog counters that the "significance" of the statutes overturned should be taken into account when assessing judicial activism. Jonathan Adler at Volokh Conspiracy pleads for a more sophisticated analysis:
Most critics of the Court should stop pretending to be advocates of judicial “restraint” and opponents of “activism” and just get on with their substantive critiques of the Court (and not just because the accusations of “activism” often fail on their own terms). Some of the substantive critiques are quite compelling — I certainly have my share of beefs with the current Court — even if not politically popular. Therein lies the rub. Accusations of “judicial activism” resonate in our political culture in ways that more substantive critiques do not. It’s far easier to attack the Court for alleged “activism” than it is to explain why some democratically enacted pieces of legislation should fall and others not. Yet that is the sort of debate we should have.