The US Supreme Court seems to receive a lot more attention than its Canadian counterpart. In part because it plays such a decisive role in US politics. The structure of the American political system may be to blame.

Comprised of the judiciary, congress, and executive, the founding fathers wanted each branch of government to maintain a relative independence from the others, while providing the checks and balances required to uphold a functioning presidential system. This organization of separate, but not equal, offsetting political institutions was an intended and striking departure from the monarchy that spawned independence.

In contemporary America, however, the path to US political supremacy is the co-opting of each branch of government by either dominant political party. This has led to the extreme politicization of the US Supreme Court and rest of the federal judiciary. Consequently, judges are tagged as either liberal or conservative and portrayed as activist or partisan.

So, it has been a common perception, especially among conservatives, that liberal judges are the activists. However, a study by Law Professors from Harvard and the Chicago School of Law has concluded the opposite. According to their research, conservative or Republican appointed judges are in fact the most activist and partisan. From the “Washington Independent”:

“We catalogued thousands of judicial decisions — well over 20,000– to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones…”

“We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal…

“We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?…”

And the Winner For the Most Partisan?

“Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.”

And the Most Activist Judge Award Goes To?

“To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions…”

“Of course, there are other measures of what makes a judge “activist,” and I do not claim that our method cannot be challenged, but it is useful to offer some statistical tests, which can ensure that critics are not building their conclusions into their definitions…”

“If we ask how often the justices vote to strike down agency decisions, Scalia and Thomas, the most conservative members of the Supreme Court, show the most activist voting patterns. By contrast, the justices commonly described as “liberal” are the least activist…”

“It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia…”

Read the complete article here.