Illustration A illustrates a majority of American's support the U.S. Supreme Court's action to stay the Florida recount. On the other hand, the same percentage of the public perceives the U.S. Supreme Court's decision was "mostly political." About a third of the public believes the action was based "mostly on the law" (see Illustration B at right).

Examining Judicial Activism*
With regard to the U.S. Supreme Court, we provide a basic lineup (sort of like baseball cards).

The Conservatives
There are three "conservatives," two of which are strong and consistent in their view of the deference courts should show to legislatures and to the plain, written word of the Constitution, and of statutes. Those two would be Antonin Scalia, appointed by Reagan in 1986, and Clarence Thomas, a Bush appointee in 1991.

Chief Justice Rehnquist, appointed an associate justice by Nixon in 1972 and elevated to lead the court by Reagan in 1986, is generally a conservative, but has a considerable tendency to accept the supremacy of the courts and allow a good deal of encroachment by the courts on other branches' powers. One could say there are 2.5 conservatives on the court and be perfectly understood.

The Liberals
On the other hand, there are four liberals on the court: John Paul Stevens, appointed by Gerald Ford in 1975, David Souter, a 1990 Bush appointee, and the two Clinton justices, Ruth Bader Ginsburg and Stephen Breyer, named to the court in 1993 and 1994 respectively.

These four basically adhere to the Lawrence Tribe view of a court as a tiny legislative body, free to mold and shape the law according to its own view of what is "good" for society and what is "good" public policy. When people speak of a "living Constitution," they are essentially advocating this approach to jurisprudence. The plain words after all were mostly written some two centuries ago.

The Middle
In the middle, and easily the most unpredictable justices on the court, we find Sandra Day O'Connor and Anthony M. Kennedy, both Reagan appointees, 1981 and 1988 respectively. Each is sometimes activist and sometimes restrained -- with little rhyme or reason. Because of that they can in no way be considered "conservative." On the other hand, because they sometimes show restraint, and sometimes defer to the legislative branch, they could never receive full credentials from the liberal club of jurists.

The court can be said to divide roughly as follows:
2.5 conservatives
4 liberals
2.5 who are wholly unpredictable

There is, however, hardly an entrenched majority which favors restraint. Exceptions frequently occur, especially when O'Connor, Kennedy and even Rehnquist happen to believe that an issue at law happens to present a good opportunity to mold beneficial public policy. O'Connor and Kennedy for example, look on the widespread availability of legal abortion as good public policy and find some way to apply their votes in support of such a policy, regardless of the facts in the case, or of the legal cases argued by the litigants.

Rehnquist is enamored of the central powers of federal government, and can be said to be "statist" in his general philosophy. He often finds ways to reflect that general view in cases before the court. He, as well as O'Connor and Kennedy, are very much charmed by the ego-gratifying concept of the courts (the entire judicial branch) as the supreme arbiter in all controversies throughout the country. This latter view is widely accepted in the general populace.

In Sum:
Justices Stevens, Souter, Ginsburg and Breyer are from the same jurisprudential mindset that the Florida Court is from, i.e., the law, the Constitution(s), the statutes (federal and state) are only passing, sometimes almost irrelevant, exhibits in the realm of "justice."

*Source: Excepts from Face to Face with Judicial Activism: The Makeup of the U.S. Supreme Court, "Let's Talk Sense," NM Senator Rod Adair, 12-10-00.

Just For Fun
Butterfly Ballots and Bifocals

Actual Palm Beach Florida Ballot

Proposed Florida Ballot

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