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[Gene GeRue <genegerue AT ruralize.com>]

> The Constitution gives the Supreme Court final say on what is 
> constitutional and that's all.

Sounds good. How does one resolve that with nine justices being unable to 
agree on what is constitutional?

>  he said her appointment to the SC would be different because
> appeals court judges "don't get to make new laws."  Even the senior 
> senator views the SC as a law making body which it clearly is not supposed 
> to be.

Biden was stating a factual condition. Even Congress knows that it is 
inferior to the Supreme Court, which fairly regularly strikes down newly 
enacted legislation.

Here is perspective from this morning's TNYT:

Op-Ed Contributors
So Who Are the Activists?
By PAUL GEWIRTZ and CHAD GOLDER
Published: July 6, 2005

New Haven

WHEN Democrats or Republicans seek to criticize judges or judicial 
nominees, they often resort to the same language. They say that the judge 
is "activist." But the word "activist" is rarely defined. Often it simply 
means that the judge makes decisions with which the critic disagrees.
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Alex Nabaum

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In order to move beyond this labeling game, we've identified one reasonably 
objective and quantifiable measure of a judge's activism, and we've used it 
to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike 
down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge 
can do. That's because Congress, as an elected legislative body 
representing the entire nation, makes decisions that can be presumed to 
possess a high degree of democratic legitimacy. In an 1867 decision, the 
Supreme Court itself described striking down Congressional legislation as 
an act "of great delicacy, and only to be performed where the repugnancy is 
clear." Until 1991, the court struck down an average of about one 
Congressional statute every two years. Between 1791 and 1858, only two such 
invalidations occurred.

Of course, calling Congressional legislation into question is not 
necessarily a bad thing. If a law is unconstitutional, the court has a 
responsibility to strike it down. But a marked pattern of invalidating 
Congressional laws certainly seems like one reasonable definition of 
judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our 
count it has upheld or struck down 64 Congressional provisions. That 
legislation has concerned Social Security, church and state, and campaign 
finance, among many other issues. We examined the court's decisions in 
these cases and looked at how each justice voted, regardless of whether he 
or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down 
Congressional laws. Justice Clarence Thomas, appointed by President George 
H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of 
those laws; Justice Stephen Breyer, appointed by President Bill Clinton, 
was the least, voting to invalidate 28.13 percent. The tally for all the 
justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O'Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered 
more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and 
John Paul Stevens - vote least frequently to overturn Congressional 
statutes, while those often labeled "conservative" vote more frequently to 
do so. At least by this measure (others are possible, of course), the 
latter group is the most activist.

To say that a justice is activist under this definition is not itself 
negative. Because striking down Congressional legislation is sometimes 
justified, some activism is necessary and proper. We can decide whether a 
particular degree of activism is appropriate only by assessing the merits 
of a judge's particular decisions and the judge's underlying constitutional 
views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' 
constitutional views. But it even more clearly illustrates the varying 
degrees to which justices would actually intervene in the democratic work 
of Congress. And in so doing, the data probably demonstrates differences in 
temperament regarding intervention or restraint.

These differences in the degree of intervention and in temperament tell us 
far more about "judicial activism" than we commonly understand from the 
term's use as a mere epithet. As the discussion of Justice Sandra Day 
O'Connor's replacement begins, we hope that debates about "activist judges" 
will include indicators like these.

Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from 
Yale Law School in May.

http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html