The Institute for Justice’s Center for Judicial Engagement sought to evaluate that claim by comparing the total number of laws and regulations enacted over the past several decades with the total number struck down by the Supreme Court. As documented in the “Government Unchecked” study about which Jonathan Adler posted here two weeks ago, the data do not support Senator Specter’s claim. To the contrary, the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.
As Professor Adler and others pointed out, it is difficult to objectively measure the Supreme Court’s activity in this fashion. But the point of the Government Unchecked report was not to establish an affirmative position regarding so-called “judicial activism”; rather, the point was to evaluate the assertion, advanced by Senator Specter and others, that the Supreme Court is systematically thwarting Congress’s legitimate policymaking efforts. The report found that in comparison to the vast quantity of laws passed, the Court is not “eating Congress’s lunch.” It is barely sweeping up the crumbs.