1. I certainly wouldn’t mind abandoning the phrase, although someone should send the memo to Heritage (for example).
2. Judicial activism is becoming more nonpartisan or transpartisan as a concept. Our friend Ross Douthat writes today that conservatives should be happy that liberals are starting to complain that the Court has overstepped its bounds by indulging in conservative activism, and they even have figured out that the other branches might properly use the means they’ve been given by the constitution to rein in judicial excesses. They’ve return to the constitutonal wisdom of FDR?
(I’m using a hotel computer that’s not great very quickly—so no linking for you!)
4. Ed Whelan celebrates daily a moment in “liberal judicial activism.” Does he mean that conservative judicial activism is an oxymoron or that it’s okay?
5. Ross cites BUSH v. GORE as a key example of what liberals call conservative judicial activism. Let’s say you think did the Court right thing in the case (ending the election or halting a political process) with appropriate constitutional support. Would it have been—under the Franck/Scott doctrine—judicial activism for the Court not to have acted and deferred to the political branches and the state of Florida? You gotta admit that’s a reach.
6. Again Brad, I don’t deny that the Court in KELO entered into the local legislature’s perspective too much. So in that way it can be said it thought of itself as a superlegislature. But according to the Heritage definition, judicial activism is when the superlegislature uses its policy preferences to displace the decision of the regular legislature. That the KELO court did not do.
7. It’s way too simple to say judicial activism is when the Court improperly uses its power by being wrong on what the Constitution means. For one thing, it’s often very unclear what the Constittution means in particular cases. Our friends—conservatives who know a lot about the Constitution—certainly have different views on how active the Court should be. At one extreme you find HADLEY ARKES (who says the Court can use natural-law reasoning to go beyond the text of the Constitution to declare laws contrary to reason and therefore unconstitutional) and RANDY BARNETT (the hero of the war agaisnt the mandate—who says that all law should be scrutinized with a presumption of liberty [or absence of law] in mind and so, according to the Frank/Scott doctrine, neither LOCHNER nor ROE was judicial activism because both were rightly decided), in the middle you find MATT FRANCK, and toward the other extreme you do find CHRIS WOLFE. And even the more activist members of this group disagree on ROE—for Hadley it ran roughshod over the natural right to life, for Randy, it was all about our inalienable right to liberty as embedded in the 9th amendment.
