JUDICIAL ACTIVISM: One thing I am hearing from a lot of liberals is that conservative judges are the activists nowadays, simply because they strike down a lot of legislation. For example, Al Hunt says so in a Wall Street Journal op-ed today.

Al Hunt (and many law professors) misunderstand what “judicial activism” really is. Judicial activism is not measured by how many statutes a court strikes down. If Congress passed a law today banning all speech critical of the Bush administration, our “conservative” Supreme Court would strike that law down tomorrow. Would that be an “activist” decision? Obviously not.

Whether a judge is an judicial activist depends upon whether he ignores or bends the plain language of the Constitution, statutes, and/or precedent to achieve the result he desires.

Let’s be honest: under that definition, these days, the typical conservative jurist is far less activist than the typical liberal jurist — largely because the “principles” which liberal jurists regularly employ are so ill-defined. Liberal judges nowadays base their decisions on fuzzy concepts such as living Constitutions, evolving standards, and my personal favorite: “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Non-lawyers reading this might think I made up that last phrase. After all, it sounds more like a phrase in a philosophy text than a quote by an appellate court designed to give guidance to lower courts. Unfortunately, that quote comes straight from our very own Supreme Court. Justice Anthony Kennedy wrote that as an integral part of his disastrous 1992 Casey decision upholding that eyesore of our legal landscape: Roe vs. Wade.

Such “principles” are so ill-defined and open-ended, judges can infuse them with whatever specific meaning they wish. When we trust 5 of 9 lawyers (a majority of the Supreme Court) to assign a subjective meaning to such vacuous phrases, and allow that subjective meaning to trump legislation passed by duly elected legislators, “judicial activism” is too tepid a phrase to describe the result. Try “judicial tyranny.”

If it is “conservative” to insist on confirming only those judges who are wary of employing such high-flown phrases to “find” new constitutional rights — look! I found another right over there, under that oak tree! — then call me conservative. I will respect Justice Scalia’s opinions when he votes to protect flag-burners or overturn criminal convictions, because I trust that he is voting that way for the right reasons. I can’t say the same for the Stephen Reinhardts of the world.