Sunday, December 18, 2005
December 18, 2005
A Challenge for Bill O'Reilly
By NICHOLAS D. KRISTOF
Let us all pray for Bill O'Reilly.
Let us pray that Mr. O'Reilly will understand that the Christmas spirit isn't about hectoring people to say "Merry Christmas," rather than "Happy Holidays," but about helping the needy.
Let us pray that Mr. O'Reilly will use his huge audience and considerable media savvy to save lives and fight genocide, instead of to vilify those he disagrees with. Let him find inspiration in Jesus, rather than in the Assyrians.
Finally, let's pray that Mr. O'Reilly and other money-changers in the temple will donate the funds they raise exploiting Christmas - covering the nonexistent "War on Christmas" rakes in viewers and advertising - to feed the hungry and house the homeless.
Alas, not all prayers can be answered. Fox News Channel's crusade against infidels who prefer generic expressions like "Happy Holidays" included 58 separate segments in just a five-day period.
After I suggested in last Sunday's column that a better way to honor the season might be to stand up to genocide in Darfur (a calamity that Mr. O'Reilly has ignored), Mr. O'Reilly denounced me on his show as a "left-wing ideologue." Bless you, Mr. O'Reilly, and Merry Christmas to you, too!
Later in the show, Mr. O'Reilly described us print journalists in general as "a bunch of vicious S.O.B.'s." Bless you again, Mr. O'Reilly; I'll pray harder for the Christmas spirit to soften your pugnacious soul.
Look, I put up a "Christmas tree," rather than a "holiday tree," and I'm sure Mr. O'Reilly is right that political correctness leads to absurd contortions this time of year. But when you've seen what real war does, you don't lightly use the word to describe disagreements about Christmas greetings. And does it really make sense to offer 58 segments on political correctness and zero on genocide?
Perhaps I'm particularly sensitive to religious hypocrites because I've spent a chunk of time abroad watching Muslim versions of Mr. O'Reilly - demagogic table-thumpers who exploit public religiosity as a cynical ploy to gain attention and money. And I always tell moderate Muslims that they need to stand up to blustery blowhards - so today, I'm taking my own advice.
Like the fundamentalist Islamic preachers, Mr. O'Reilly is a talented showman, and my sense is that his ranting is a calculated performance. The couple of times I've been on his show, he was mild mannered and amiable until the camera light went on - and then he burst into aggrieved indignation, because he knew it made good theater.
If Mr. O'Reilly wants to find a Christmas cause, he should invite guests from Catholic Relief Services, World Vision or the National Association of Evangelicals - among the many faith-based organizations that are doing heroic work battling everything from river blindness to sex trafficking. Indeed, the real victims of Mr. O'Reilly are the authentic religious conservatives, because some viewers falsely assume that ill-informed bombast characterizes the entire religious right.
(I'm tempted to think that Mr. O'Reilly is actually a liberal plant, meant to discredit conservatives. Think about it. Who would be a better plant than a self-righteous bully in the style of Father Coughlin or Joe McCarthy? What better way to caricature the right than by having Mr. O'Reilly urge on air that the staff of Air America be imprisoned: "Dissent, fine; undermining, you're a traitor. Got it? So, all those clowns over at the liberal radio network, we could incarcerate them immediately. Will you have that done, please? Send over the F.B.I. and just put them in chains, because they, you know, they're undermining everything.")
Some authentic religious conservatives are embarrassed by television phonies. Cal Thomas, the conservative Christian columnist, warned: "The effort by some cable TV hosts and ministers to force commercial establishments into wishing everyone a 'Merry Christmas' might be more objectionable to the One who is the reason for the season than the 'Happy Holidays' mantra required by some store managers."
So I have a challenge for Mr. O'Reilly: If you really want to defend traditional values, then come with me on a trip to Darfur. I'll introduce you to mothers who have had their babies clubbed to death in front of them, to teenage girls who have been gang-raped and then mutilated - and to the government-armed thugs who do these things.
You'll have to leave your studio, Bill. You'll encounter pure evil. If you're like me, you'll be scared. If you try to bully some of the goons in Darfur, they'll just hack your head off. But you'll also meet some genuine conservative Christians - aid workers who live the Gospel instead of sputtering about it - and you'll finally be using your talents for an important cause.
So, Bill, what'll it be? Will you dare travel to a real war against Christmas values, in which the victims aren't offended shoppers but terrified children thrown on bonfires? I'm waiting to hear.
* Copyright 2005The New York Times Company
Sunday, November 27, 2005
Link to Paul English's guide here.
Monday, November 14, 2005
Tuesday, November 01, 2005
Ann Althouse, University of Wisconsin law professor, made a good point in today's New York Times, saying:
"To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work."
Read it all here.
Althouse was also on Open Source on Oct. 31, 2005. Well worth listening to if intrested in the topic. Listen to it here.
Curiously, if confirmed, Alito would be the 5th Catholic on the court.
Thursday, October 27, 2005
The question is who will be next. I doubt that President Bush will make an announcement before next week for fear of being accused of "wagging the dog" because on the impending indictments of Rove and Libby.
I suspect that the conservatives are not going to get the candidate that they want. Bush ran as a moderate in 2000; as a "compassionate (read: prodigal) conservative in the spirit of bi-partisanship after the antagonistic Clinton years.
In 2004 he had to take a hard right to get the Evangelical Christians to vote. In 2000 they largely sat on their hands, as they usually do (they still voted in a lower percentage than either Catholics or mainstream Protestants. However, he really hasn't done much to advance their agenda, especially compared to the neo-cons.
A case can also be made that the Republicans do not want to have Roe v Wade reversed. Right now they can run as "pro-life" (who isn't?) candidates, currying favor again with the Evangelical crowd, while not having to worry about the 70% of Americans who support a woman's right to choose.
I predict that President Bush is going to name someone who is perfectly acceptable to those outstanding Senator, Arlen Spector and Pat Leahy.
Thursday, October 20, 2005
Wednesday, October 05, 2005
NOW all the truth is out,
Be secret and take defeat
From any brazen throat,
For how can you compete,
Being honour bred, with one
Who, were it proved he lies,
Were neither shamed in his own
Nor in his neighbours’ eyes?
Bred to a harder thing
Than Triumph, turn away
And like a laughing string
Whereon mad fingers play
Amid a place of stone,
Be secret and exult,
Because of all things known
That is most difficult.
Friday, September 23, 2005
If a group of US researchers have their way, lions, cheetahs, elephants and camels could soon roam parts of North America, Nature magazine reports.
The plan, which is called Pleistocene re-wilding, is intended to be a proactive approach to conservation.
The initiative would help endangered African animals while creating jobs, the Cornell University scientists say.
Evidence also suggests, they claim, that "megafauna" can help maintain ecosystems and boost biodiversity.
"If we only have 10 minutes to present this idea, people think we're nuts," said Harry Greene, professor of ecology and evolutionary biology at Cornell University, US.
"But if people hear the one-hour version, they realise they haven't thought about this as much as we have. Right now we are investing all our megafauna hopes on one continent - Africa."
Thursday, September 22, 2005
Tuesday, September 20, 2005
Interestingly, we did not know that Bob had a photo of the event until Bob, Dan, and I were talking at my father's visitation in June, 2004.
Sunday, September 04, 2005
For the past five days or so I have repeatedly heard from the Right wing news that "left" has been blaming President Bush for the hurricane. I have heard this time and time again and even had two different right-wing friends of mine ask me if I'm one of those lefties who are blaming Bush for it.
I can't say, however, that I have heard, read, or seen anyone blame Bush for the hurricane.
Global warming does increase surface water temperature which increases the force of hurricanes, but those are probably minimal and regardless GWB can't be held responsible for all of global warming.
The marshes and barrier islands are in dire trouble off the coast of LA, but have been in decline for years and will take decades to repair.
George Bush does need to be accountable for his response, however. He flew back from vacation on a Sunday night to sign the Terri Schiavo bill, but went on two stump speeches to shore up support for his war instead of going back to D.C. to coordinate the relief effort.
He actually came out and said that "no one could imagine the levees breaching" when FEMA's simulation last year showed they would and that scenario has been discussed for decades.
On Thursday 9/1/05 our director of Homeland Security said he didn't know that there were people in the Superdome that didn't have food and water. Shouldn't these people have better information than what I can get from MSNBC??
Fortunately we are now hearing from the legitimate Right-wing media pointing out the gross incompetence of this administration, including George Will, Pat Buchanan,and David Brooks.
We have no plan for Iraq. We have no domestic agenda at all. And now we have the greatest natural disaster with no plan to handle it.
You'd need a second glass of Kool-Aid to "stay the course."
Monday, August 29, 2005
God give me unclouded eyes and freedom from haste.
God give me a quiet and relentless anger against all pretense and all pretentious work and all work left slack and unfinished.
God, give me a restlessness whereby I may neither sleep nor accept praise till my observed results equal my claculated results or in pious glee I discover and assault my error.
God, give me the strength not to trust in God!
Sunday, August 28, 2005
The New York Times
August 28, 2005
Show Me the Science
By DANIEL C. DENNETT
Blue Hill, Me.
PRESIDENT BUSH, announcing this month that he was in favor of teaching about "intelligent design" in the schools, said, "I think that part of education is to expose people to different schools of thought." A couple of weeks later, Senator Bill Frist of Tennessee, the Republican leader, made the same point. Teaching both intelligent design and evolution "doesn't force any particular theory on anyone," Mr. Frist said. "I think in a pluralistic society that is the fairest way to go about education and training people for the future."
Is "intelligent design" a legitimate school of scientific thought? Is there something to it, or have these people been taken in by one of the most ingenious hoaxes in the history of science? Wouldn't such a hoax be impossible? No. Here's how it has been done.
First, imagine how easy it would be for a determined band of naysayers to shake the world's confidence in quantum physics - how weird it is! - or Einsteinian relativity. In spite of a century of instruction and popularization by physicists, few people ever really get their heads around the concepts involved. Most people eventually cobble together a justification for accepting the assurances of the experts: "Well, they pretty much agree with one another, and they claim that it is their understanding of these strange topics that allows them to harness atomic energy, and to make transistors and lasers, which certainly do work..."
Fortunately for physicists, there is no powerful motivation for such a band of mischief-makers to form. They don't have to spend much time persuading people that quantum physics and Einsteinian relativity really have been established beyond all reasonable doubt.
With evolution, however, it is different. The fundamental scientific idea of evolution by natural selection is not just mind-boggling; natural selection, by executing God's traditional task of designing and creating all creatures great and small, also seems to deny one of the best reasons we have for believing in God. So there is plenty of motivation for resisting the assurances of the biologists. Nobody is immune to wishful thinking. It takes scientific discipline to protect ourselves from our own credulity, but we've also found ingenious ways to fool ourselves and others. Some of the methods used to exploit these urges are easy to analyze; others take a little more unpacking.
A creationist pamphlet sent to me some years ago had an amusing page in it, purporting to be part of a simple questionnaire:
Do you know of any building that didn't have a builder? [YES] [NO]
Do you know of any painting that didn't have a painter? [YES] [NO]
Do you know of any car that didn't have a maker? [YES] [NO]
If you answered YES for any of the above, give details:
Take that, you Darwinians! The presumed embarrassment of the test-taker when faced with this task perfectly expresses the incredulity many people feel when they confront Darwin's great idea. It seems obvious, doesn't it, that there couldn't be any designs without designers, any such creations without a creator.
Well, yes - until you look at what contemporary biology has demonstrated beyond all reasonable doubt: that natural selection - the process in which reproducing entities must compete for finite resources and thereby engage in a tournament of blind trial and error from which improvements automatically emerge - has the power to generate breathtakingly ingenious designs.
Take the development of the eye, which has been one of the favorite challenges of creationists. How on earth, they ask, could that engineering marvel be produced by a series of small, unplanned steps? Only an intelligent designer could have created such a brilliant arrangement of a shape-shifting lens, an aperture-adjusting iris, a light-sensitive image surface of exquisite sensitivity, all housed in a sphere that can shift its aim in a hundredth of a second and send megabytes of information to the visual cortex every second for years on end.
But as we learn more and more about the history of the genes involved, and how they work - all the way back to their predecessor genes in the sightless bacteria from which multicelled animals evolved more than a half-billion years ago - we can begin to tell the story of how photosensitive spots gradually turned into light-sensitive craters that could detect the rough direction from which light came, and then gradually acquired their lenses, improving their information-gathering capacities all the while.
We can't yet say what all the details of this process were, but real eyes representative of all the intermediate stages can be found, dotted around the animal kingdom, and we have detailed computer models to demonstrate that the creative process works just as the theory says.
All it takes is a rare accident that gives one lucky animal a mutation that improves its vision over that of its siblings; if this helps it have more offspring than its rivals, this gives evolution an opportunity to raise the bar and ratchet up the design of the eye by one mindless step. And since these lucky improvements accumulate - this was Darwin's insight - eyes can automatically get better and better and better, without any intelligent designer.
Brilliant as the design of the eye is, it betrays its origin with a tell-tale flaw: the retina is inside out. The nerve fibers that carry the signals from the eye's rods and cones (which sense light and color) lie on top of them, and have to plunge through a large hole in the retina to get to the brain, creating the blind spot. No intelligent designer would put such a clumsy arrangement in a camcorder, and this is just one of hundreds of accidents frozen in evolutionary history that confirm the mindlessness of the historical process.
If you still find Test Two compelling, a sort of cognitive illusion that you can feel even as you discount it, you are like just about everybody else in the world; the idea that natural selection has the power to generate such sophisticated designs is deeply counterintuitive. Francis Crick, one of the discoverers of DNA, once jokingly credited his colleague Leslie Orgel with "Orgel's Second Rule": Evolution is cleverer than you are. Evolutionary biologists are often startled by the power of natural selection to "discover" an "ingenious" solution to a design problem posed in the lab.
This observation lets us address a slightly more sophisticated version of the cognitive illusion presented by Test Two. When evolutionists like Crick marvel at the cleverness of the process of natural selection they are not acknowledging intelligent design. The designs found in nature are nothing short of brilliant, but the process of design that generates them is utterly lacking in intelligence of its own.
Intelligent design advocates, however, exploit the ambiguity between process and product that is built into the word "design." For them, the presence of a finished product (a fully evolved eye, for instance) is evidence of an intelligent design process. But this tempting conclusion is just what evolutionary biology has shown to be mistaken.
Yes, eyes are for seeing, but these and all the other purposes in the natural world can be generated by processes that are themselves without purposes and without intelligence. This is hard to understand, but so is the idea that colored objects in the world are composed of atoms that are not themselves colored, and that heat is not made of tiny hot things.
The focus on intelligent design has, paradoxically, obscured something else: genuine scientific controversies about evolution that abound. In just about every field there are challenges to one established theory or another. The legitimate way to stir up such a storm is to come up with an alternative theory that makes a prediction that is crisply denied by the reigning theory - but that turns out to be true, or that explains something that has been baffling defenders of the status quo, or that unifies two distant theories at the cost of some element of the currently accepted view.
To date, the proponents of intelligent design have not produced anything like that. No experiments with results that challenge any mainstream biological understanding. No observations from the fossil record or genomics or biogeography or comparative anatomy that undermine standard evolutionary thinking.
Instead, the proponents of intelligent design use a ploy that works something like this. First you misuse or misdescribe some scientist's work. Then you get an angry rebuttal. Then, instead of dealing forthrightly with the charges leveled, you cite the rebuttal as evidence that there is a "controversy" to teach.
Note that the trick is content-free. You can use it on any topic. "Smith's work in geology supports my argument that the earth is flat," you say, misrepresenting Smith's work. When Smith responds with a denunciation of your misuse of her work, you respond, saying something like: "See what a controversy we have here? Professor Smith and I are locked in a titanic scientific debate. We should teach the controversy in the classrooms." And here is the delicious part: you can often exploit the very technicality of the issues to your own advantage, counting on most of us to miss the point in all the difficult details.
William Dembski, one of the most vocal supporters of intelligent design, notes that he provoked Thomas Schneider, a biologist, into a response that Dr. Dembski characterizes as "some hair-splitting that could only look ridiculous to outsider observers." What looks to scientists - and is - a knockout objection by Dr. Schneider is portrayed to most everyone else as ridiculous hair-splitting.
In short, no science. Indeed, no intelligent design hypothesis has even been ventured as a rival explanation of any biological phenomenon. This might seem surprising to people who think that intelligent design competes directly with the hypothesis of non-intelligent design by natural selection. But saying, as intelligent design proponents do, "You haven't explained everything yet," is not a competing hypothesis. Evolutionary biology certainly hasn't explained everything that perplexes biologists. But intelligent design hasn't yet tried to explain anything.
To formulate a competing hypothesis, you have to get down in the trenches and offer details that have testable implications. So far, intelligent design proponents have conveniently sidestepped that requirement, claiming that they have no specifics in mind about who or what the intelligent designer might be.
To see this shortcoming in relief, consider an imaginary hypothesis of intelligent design that could explain the emergence of human beings on this planet:
About six million years ago, intelligent genetic engineers from another galaxy visited Earth and decided that it would be a more interesting planet if there was a language-using, religion-forming species on it, so they sequestered some primates and genetically re-engineered them to give them the language instinct, and enlarged frontal lobes for planning and reflection. It worked.
If some version of this hypothesis were true, it could explain how and why human beings differ from their nearest relatives, and it would disconfirm the competing evolutionary hypotheses that are being pursued.
We'd still have the problem of how these intelligent genetic engineers came to exist on their home planet, but we can safely ignore that complication for the time being, since there is not the slightest shred of evidence in favor of this hypothesis.
But here is something the intelligent design community is reluctant to discuss: no other intelligent-design hypothesis has anything more going for it. In fact, my farfetched hypothesis has the advantage of being testable in principle: we could compare the human and chimpanzee genomes, looking for unmistakable signs of tampering by these genetic engineers from another galaxy. Finding some sort of user's manual neatly embedded in the apparently functionless "junk DNA" that makes up most of the human genome would be a Nobel Prize-winning coup for the intelligent design gang, but if they are looking at all, they haven't come up with anything to report.
It's worth pointing out that there are plenty of substantive scientific controversies in biology that are not yet in the textbooks or the classrooms. The scientific participants in these arguments vie for acceptance among the relevant expert communities in peer-reviewed journals, and the writers and editors of textbooks grapple with judgments about which findings have risen to the level of acceptance - not yet truth - to make them worth serious consideration by undergraduates and high school students.
SO get in line, intelligent designers. Get in line behind the hypothesis that life started on Mars and was blown here by a cosmic impact. Get in line behind the aquatic ape hypothesis, the gestural origin of language hypothesis and the theory that singing came before language, to mention just a few of the enticing hypotheses that are actively defended but still insufficiently supported by hard facts.
The Discovery Institute, the conservative organization that has helped to put intelligent design on the map, complains that its members face hostility from the established scientific journals. But establishment hostility is not the real hurdle to intelligent design. If intelligent design were a scientific idea whose time had come, young scientists would be dashing around their labs, vying to win the Nobel Prizes that surely are in store for anybody who can overturn any significant proposition of contemporary evolutionary biology.
Remember cold fusion? The establishment was incredibly hostile to that hypothesis, but scientists around the world rushed to their labs in the effort to explore the idea, in hopes of sharing in the glory if it turned out to be true.
Instead of spending more than $1 million a year on publishing books and articles for non-scientists and on other public relations efforts, the Discovery Institute should finance its own peer-reviewed electronic journal. This way, the organization could live up to its self-professed image: the doughty defenders of brave iconoclasts bucking the establishment.
For now, though, the theory they are promoting is exactly what George Gilder, a long-time affiliate of the Discovery Institute, has said it is: "Intelligent design itself does not have any content."
Since there is no content, there is no "controversy" to teach about in biology class. But here is a good topic for a high school course on current events and politics: Is intelligent design a hoax? And if so, how was it perpetrat- ed?
Daniel C. Dennett, a professor of philosophy at Tufts University, is the author of "Freedom Evolves" and "Darwin's Dangerous Idea."
* Copyright 2005 The New York Times Company
Wednesday, August 24, 2005
Friday, July 22, 2005
David Souter was a Supreme Court judge in New Hampshire for 13 years, had 217 written opinions, and was recommended to George H.W. Bush by his chief of staff, John Sununu.
George 41 was a moderate. And he knew exactly what he was doing.
Thursday, July 21, 2005
The two Democratic appointees were really chosen be Sen Orrin Hatch of Utah.
It is interesting to note that Ruth Bader Ginsberg voted with Judge Robet Bork 85% of the time when they served together on the D.C. court. Some lefty.
From what I've read about John Roberts, he seems ok. President Bush ran as a moderate in 2000. Now that he can't run again, he doesn't need to pander to the radical right. Had this occured last year his choice would have been very different.
The hated Ann Coulter hates the choice; it must be a good thing.
Time will tell, but I am cautiously optimistic.
Friday, July 15, 2005
I think everyone will agree on the top three: Lincoln, FDR, Washington (my order).
It is interesting to note that when John Wilkes Booth killed Lincoln on 14 April 1865 he jumped onto the stage and said "Sic Semper Tyrranis" (Thus to all tyrants). When Timothy McVeigh was arrested he had on a t-shirt with a portrait of Lincoln and that saying underneath.
After that photo was publish, Southern Partisan magazine quickly sold out of those shirts. A couple years later Sen John Ashcroft (MO) had an exclussive interview with Southern Partisan talking about how Lee, Davis, and Jackson were all "Southern Patriots." Then, our current president made him the most powerful law enforcement offical in the land.
I digress. Who's your favorite president?
Thursday, July 14, 2005
I have been fortunate enough to have had an occasional ongoing email discussion with them since. They are currently (7/05) in Africa. Check out their website.
I figured that in order to encourage him I would make him fried chicken for dinner. It was quite tasty and looked a lot like brother Dan's fried chicken here.
The jury is still out as to whether or not Dan can come.
I got an email today from a friend who said, "I don't like France, the French, or Bastille Day." I really can't understand that sentiment, as ubiquitous as it is.
Before we went to war in Iraq (a situation which has curious parallels to the McKinley administration and America's first war of intervention) most countries, including France, Germany, and Russia believed that Sadaam Hussein had weapons of mass destruction. Colin Powell went before the UN to argue our case.
The difference between the U.S. and those who opposed invasion was that they did not think the case was adequate and that we should give the U.N. inspectors, who were doing a good job, more time to find said WMDs.
Yes, Sadaam is a terrible person. Yes, he killed more nearly a million of his people and a million Iranians in the war in the '80s (we supported him and gave him the chemical weapons he subsequently used on the Iraqi Kurds). Yes, he invaded Kuwait and we sent 600,000 troops (how many did we send this time?) to kick him out. Yes, he even said that he didn't have WMDs and then was so evil that he actually didn't!
One thing he didn't do was support Al Qaeda. In fact, no Arab nation did, which is why Osama Bin Laden was holed up in Afghanistan.
Somehow we hate the French (for full disclosure, I am of French ancestory) because they didn't do what we told them they should do. There isn't the same sentiment against the Germans. There isn't the same sentiment against the Turks. But the big problem is that the French were RIGHT! There are no WMDs. Yet now we've created a hotbed of terrorism.
The current president has no plan to solve the problem and no plan to get out. With nearly 2,000 dead Americans and 100,000 dead Iraqis, shouldn't GW at least admit he was wrong about the reasons that he took us to war?
107 years after McKinley "liberated" the Cubans in 1898, they are still not free. God told McKinley to invade the Philippines; George W's 2004 state of the Union address is eerily similar.
The French were right, but now all we hear is racist remarks against them. "Freedom Fries." Give me a break. We Americans are big boys. We can handle other people being right.
So Who Are the Activists?
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.
In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.
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. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. 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." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.
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, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. 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.
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.
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.
To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.
Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.
These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.
Because of an editing error, this article misstated the date the court started. Its first official business began in 1790, not 1791.
Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.