NYTimes guest columnist Dahlia Lithwick is arguing that the"activist judge" label deserves an equally withering counter, something that can be bandied about when judges are activist in reactionary ways (which is at least as common). Her nomination:"re-activist":
Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the"dignity" of states. ... Re-activist judges have increasingly adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. ... Re-activist judges are able to present themselves as"strict constructionists" or"originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue - over whether the Constitution should evolve or stay static - no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn't activism.(Writers note: the baby seal metaphor was probably what got the column started: bloggers and songwriters know how it is: you find a phrase or an image in your head, and you build something around it. If you're really good, people don't notice which phrase it was.)
While I applaud her attempt to highlight the hidden activism of" conservative" judicators and challenge the"judicial activism" meme, the moderate in me wonders why the middle ground -- the vast majority of judges at all levels doing their best to apply enduring and slowly changing legal doctrines to swiftly shifting gray areas of contemporary life -- gets so little attention.
Or perhaps the problem is a perceptual and rhetorical one, caused by the very real diversity of political thought and theory in America, and the increasingly powerful tendency to demonize the opposition(s). Depending on what camp you belong to, 'smart' judges are the ones that agree with you, and 'activist' judges are the ones that don't? No, I don't think it's that simple, though sometimes the rhetoric does seem to fall that way.
Perhaps we've really come to a point where we are getting at the heart of the matter, a nexus where issues of federalism, rights, religion, legitimacy, identity, security need to be addressed in fundamental ways. The last time we did this was in the 50s and 60s, I think, so perhaps we really are due. Then, when we work these questions out, we can come together again in a reasonably coherent manner and go on for another few decades, pushing the limits and exploring the gray areas of our new paradigm. Maybe, though, I'm being overly optimistic to think that this Supreme Court can actually resolve some of these questions without exacerbating them.
Follow-up: Brandon, at Siris, thinks I may be underestimating the degree to which the judiciary has, due to a lack of checks on its authority,"precedent by precedent, slowly moved or begun to move outside its Constitutional bounds, and that therefore the problem is systemic." The Canadian Constitution, he points out, has a clause, enacted in 1982 (Clause 32), allowing the legislature to check the judiciary.