Research Updates for The Most Activist Supreme Court in History
By popular demand, this page updates some of the data in the book through the early years of the John Roberts era. In addition, some readers may be interested in my 2007 analysis of all federal statutes struck down by the Court from 1981-2005.
No perfect source exists for identifying the Court’s exercises of judicial review, but in the book, I relied primarily on the Congressional Research Service (CRS) report entitled, “The Constitution of the United States of America: Analysis and Interpretation.” Through June 2008, the numbers reported below are drawn primarily from this report. For more recent cases, I have compiled the numbers myself, and where I am aware of judicial review decisions prior to June 2008 that are not included in the CRS report, I have added those as well. I have also made a few small corrections to the data published in the book.
Decisions striking down federal statutes on constitutional grounds
| Chief Justice Era | Years | Number | Annual Average |
| Early Court | 1789-1863 | 2 | 0.03 |
| Chase Court | 1864-1873 | 8 | 0.89 |
| Waite Court | 1874-1888 | 7 | 0.50 |
| Fuller Court | 1888-1910 | 14 | 0.64 |
| White Court | 1910-1921 | 12 | 1.20 |
| Taft Court | 1921-1930 | 11 | 1.22 |
| Hughes Court, pre-“switch in time” | 1930-1936 | 14 | 2.00 |
| Roosevelt Court | 1937-1953 | 3 | 0.18 |
| Early Warren Court | 1954-1962 | 7 | 0.78 |
| Late Warren Court | 1963-1969 | 16 | 2.29 |
| Burger Court | 1969-1986 | 32 | 1.88 |
| Early Rehnquist Court | 1986-1994 | 7 | 0.78 |
| Late Rehnquist Court | 1995-2005 | 35 | 3.18 |
| Roberts Court to date | 2005-2013 | 15 | 1.88 |
Decisions striking down state and local statutes on constitutional grounds
| Chief Justice Era | Years | Number | Annual Average |
| Early Court | 1789-1863 | 39 | 0.51 |
| Chase Court | 1864-1873 | 33 | 3.67 |
| Waite Court | 1874-1888 | 65 | 4.64 |
| Fuller Court | 1888-1910 | 89 | 4.05 |
| White Court | 1910-1921 | 124 | 12.40 |
| Taft Court | 1921-1930 | 129 | 14.33 |
| Hughes Court, pre-“switch in time” | 1930-1936 | 65 | 9.29 |
| Roosevelt Court | 1937-1953 | 108 | 6.35 |
| Early Warren Court | 1954-1962 | 73 | 8.11 |
| Late Warren Court | 1963-1969 | 113 | 16.14 |
| Burger Court | 1969-1986 | 309 | 18.18 |
| Early Rehnquist Court | 1986-1994 | 85 | 10.63 |
| Late Rehnquist Court | 1995-2005 | 52 | 4.73 |
| Roberts Court to date | 2005-2013 | 31 | 3.88 |
Last updated: June 27, 2013.