There are two flavors of judicial activism in the U.S. Supreme Court — liberal (e.g., the Warren Court) and conservative (e.g., the current Roberts Court). The NY Times today has an article titled “Court Under Roberts Is Most Conservative in Decades.” This is primarily due to the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito.
A confluence of factors brought Justice Alito to the Court: the failure of the Harriet Miers nomination; the justices’ desire not to have two vacancies on the Court at once coupled with Rehnquist’s desire to hang on and O’Connor’s willingness to resign; the poor health of O’Connor’s husband; Rehnquist’s death.
With Alito replacing O’Connor, the Court has moved further to the right, and the data back this up (though I think how much to the right still remains to be seen). Readers of my former Empirical Legal Studies Blog will be pleased to see that the NY Times cites and uses data from Martin-Quinn Justice Scores, as well as data from Lee Epstein and Harold Spaeth.
Justice Alito was confirmed by a Senate vote of 58-42 (the second lowest vote total in history behind Clarence Thomas). The Democrats could have mustered a filibuster. Should they have? In purely political terms, yes. That said, the next question is a far more difficult one: Should otherwise qualified jurists be kept of the court for political reasons? This depends on one’s view of the role of the Court and the role of the Senate.
(Source of graphics: NY Times, http://www.nytimes.com/interactive/2010/07/25/us/20100725-roberts-graphic.html?ref=us)