Infelicitous George begs the question

George Will joins with Cass Sunstein (doubtless to his surprise):

In the last decade alone, the Rehnquist court, in an unprecedented flurry of activism, has struck down more than three-dozen enactments by the people's representatives in Congress.

For his part, Sunstein writes:

[F]undamentalists welcome a highly activist role for the federal courts. Consider a remarkable fact: Since 1995, the Rehnquist Court has struck down over 30 acts of Congress, including parts of the Violence Against Women Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

First, where does this number come from? Neither of these luminaries bothers to tell us, and I'm skeptical either of them counted (Sunstein may have, of course, as it would be consistent with his business). Either way, this is an easy fact floating around without attribution.

More importantly, it's highly misleading. There's no way the Rehnquist Court issued 30 or three dozen decisions striking down acts of Congress. The most recent Commerce Clause case, Gonzales v. Raich, was about medical marijuana, and it upheld it. I doubt that it's even the fifth in the Lopez line, much less the 36th. So what do they mean? Were there 36 provisions invalidated by these cases? Ought they not know and say?

And most importantly, give me a break. Are either of these guys saying judicial review shouldn't exist? Isn't judicial review striking down acts of Congress? Aren't they simply assuming that Congress acted constitutionally? To call this "activism" is silly and overcute wordplay, not merely sophism, but childish sophism. It's good enough for the Manhattan media, no doubt, but Sunstein, at least, ought to know better.