Patterico's Pontifications


New York Times Performs Sleight of Hand on “Judicial Activism”

Filed under: General — Patterico @ 6:38 pm

The New York Times ran an editorial yesterday titled Activism Is in the Eye of the Ideologist. (H/t Howard Bashman.) Here is its nonsensical thesis:

Anyone who follows the courts knows that conservative judges are as activist as liberal judges —just for different causes. A new study of Supreme Court voting patterns confirms this and suggests that the conservative Justices Antonin Scalia and Clarence Thomas are actually more activist than their liberal colleagues.

Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to 2005. Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, which is forthcoming in Constitutional Commentary, justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.

This standard is not “reasonable” — it is ridiculous. The standard labels “activist” any judicial decision that overturns a law or previously decided case, no matter how unconstitutional the law or case might be.

If California passed the “Imprison All Arabs Law of 2006” tomorrow, and a court were to strike it down, this study would label such a ruling an “activist” decision.

Applying this strained definition of “judicial activism,” Plessy v. Ferguson would not be considered an “activist” decision, but Brown v. Board of Education would — simply because Brown overturned Plessy. [UPDATE: Actually, it didn’t — which strengthens my argument further. See below.]

Why would anyone adopt such a counterintuitive, silly standard as that?

Oh — because doing so allows them to call conservative judges “judicial activists”:

The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress.

Wrong. Simply striking down a law does not make you a judicial activist. If a judge strikes down a law because the law is clearly unconstitutional, that action is not “judicial activism” — it is “judging.” That’s quite simply what good judges do.

In order to call conservatives judicial activists, the study (and the editors of the New York Times) have to radically redefine the term “judicial activism.” As it is commonly used, the term has a negative connotation, and is used when a judge substitutes his own personal policy preferences for the law. The study and Times editors redefine it to mean something entirely different: simply overturning a law (however unconstitutional) or judicial decision (however wrongheaded and dangerous). This new definition of “judicial activism” describes some of the finest decisions the Supreme Court has ever rendered.

Redefining terms this way reflects unadulterated cynicism. At its core, it constitutes an effort to render the term meaningless — thus depriving conservatives of a potent rhetorical tool.

An analogy will illustrate how this redefinition twists logic into a pretzel.

Pretend that we want to decide whether Republicans or Democrats are bigger hypocrites. But hypocrisy means changing your position for an unjustified reason, and gosh! that’s so hard to quantify! So, we’ll substitute a new, objective standard of “hypocrisy”: anyone who ever changes their position on any issue is a hypocrite. You thought tax cuts were a good idea when the government was running surpluses, but a bad idea when deficits skyrocketed? HYPOCRITE!!

Such a counterintuitive definition of “hypocrisy” would be easy to quantify, I suppose, but horribly misleading. Just like this definition of “judicial activism.”

This is not the first time that the New York Times has tried to push this silly definition of “judicial activism,” and it has been entertainingly debunked by Ann Coulter (the very same Ann Coulter whom I have often criticized on this site). In this column, Coulter said:

But liberals have recently taken to pretending judicial activism is — as The New York Times has said repeatedly — voting “to invalidate laws passed by Congress.” Invalidating laws has absolutely nothing to do with “judicial activism.” It depends on whether the law is unconstitutional or not. That’s really the key point.

That’s why we have a judicial branch, Mr. Sulzberger, publisher of The New York Times. . . . If Congress passed a law prohibiting speech criticizing Bush, or banning blacks from owning property, or giving foreigners the right to run for president — all those laws could be properly struck down by the Supreme Court. That’s not “judicial activism,” it’s “judicial.”

Invalidating a law that prohibits killing unborn children on the preposterous grounds that the Constitution contains an extra-double-secret right to abortion no one had noticed for 200 years — that’s judicial activism. When conservative judges strike down laws, it’s because of what’s in the Constitution. When liberal judges strike down laws (or impose new laws, such as tax increases), it’s because of what’s in The New York Times.

The left’s redefinition of judicial activism to mean something it’s not allows liberals to claim they oppose judicial activism and to launch spirited denunciations of conservative judges as the real “judicial activists.” This is the Democrats’ new approach to winning arguments: Change the definition of words in mid-argument without telling the guy you’re arguing with. Chairman Mao would approve.

He would also love this passage from yesterday’s editorial:

Activism is not necessarily a bad thing. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. Clearly, all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws. What is wrong is for one side to pretend its judges are not activist, and turn judicial activism into a partisan talking point, when the numbers show a very different story.

No . . . what is wrong is for one side to pretend that words with a commonly understood meaning actually mean something entirely different. “Judicial activism” is not a good thing, and Americans with common sense know this. For the editors of the New York Times to pretend otherwise shows them to be rank hypocrites.

And editors? I’m using the common-sense definition of the word “hypocrites.” It’s not a compliment.

UPDATE: A commenter reminds me that Brown v. Board of Education did not explicitly overrule Plessy. Rather, it evaded the clear holding of Plessy through dubious social science.

This merely strengthens my argument. Brown was an activist case in reasoning, but not in result — because the result was proper, and could have been reached through a proper application of originalism. If the Court had done so, it would indeed have squarely overturned Plessy, and upheld the Constitution — an action that would not have been “activist,” while the actual decision’s reasoning was. Not only would such a decision have been non-activist and proper, it would have had benefits for our Equal Protection jurisprudence.

Thanks to the commenter for the reminder.

37 Responses to “New York Times Performs Sleight of Hand on “Judicial Activism””

  1. Dead on P.

    Under this logic, if a radical Congress came into power determined to pass laws explicitly repealing the First Amendment, the court srtiking them down would be considered “activist”. Beyond belief. Shows you that Constitutional philosophy can be twisted in any direction if you divorce yourself from a reasonable interpretation of the text itself.

    Justin Levine (62eb9b)

  2. Um … and your point?

    Kevin Murphy (0b2493)

  3. I don’t understand comment #2. Are you saying I beat this into the ground? Or that you really don’t understand? Or are you responding to comment #1?

    Patterico (de0616)

  4. Off topic: I cannot post a comment on Mr. Levine’s “Welcoming Somalis to America”. Is it just me?

    nk (b57bfb)

  5. Kevin,

    Did you mean “What else would you expect from the NYT?”

    nk (b57bfb)

  6. Its time to dump these liberal activist judges who are wrecking our constitution that means dumping the 9th curcutt court

    krazy kagu (f63577)

  7. I’ll agree that voting to overturn a law should not be the standard for determining activism… but only provided that the judge’s rationale for doing so wasn’t something the judge came up with simply to justify their ruling. On the other hand, voting to overturn a well-established and longtime precedent is activist. Doing so may be right, but given the weight judges are supposed to give to respecting precedent, I’d argue that a judge who was willing to throw a 30 year precedent aside is, at least by the common sense definition, an activist.

    As to the Times conclusion, I very much agree with them that conservative judges are just as activist as liberal judges. The Scalias are just as committed to pushing their agenda (original intent or whatever) as are any liberal judge you can find. They all twist themselves into pretzels trying to craft decisions in cases that don’t completely contradict positions they have taken elsewere.. just how do ‘states rights’ judges square their voting to overturn assisted suicide, medical marijuana and restrictions on selling wine through out-of-state distributors? There’s been precious few times where I have heard of a judge doing what John Roberts do in the DC-subway case, where he clearly didn’t like the law but voted to uphold it anyway because it wasn’t his place to overturn it.

    steve sturm (d3e296)

  8. Why would anyone adopt such a counterintuitive, silly standard as that?

    Because activism is a neutral term, and some even think that judicial review itself is activism.

    actus (10527e)

  9. Patterico:

    Patterico discovers Argument by Redefinition!

    The Left has been doing this for years and years. You’ve spotted half the technique, redefining some previously well-understood word.

    The second half is that, even after redefining the meaning, they rely upon the frisson of the original meaning to evoke an emotional response.

    For example:

    1. Redefine the word “rape” to include logging in “old-growth” forest;
    2. Loudly accuse a lumber company of “raping the environment.”
    3. Say, “What do we do with rapists? We put them in prison, naturally. So why haven’t we put the CEO of Engulf & Devour in prison?”

    This is the classic use of this rhetorical technique: first you redefine the word “rape” to include something unrelated to the real meaning; then you use the horror that all decent people have of rapists to smear a CEO who has done nothing wrong.

    More recent examples include:

    • Calling Bush a “liar” because he came to a conclusion based upon evidence, some of which later was shown to be inaccurate.

      They redefine “lie” to include “inaccuracy,” but still rely upon the original negative reaction people have to actual liars to turn people away from Bush.

    • Saying that Iraq is in the midst of a “civil war,” when it looks absolutely nothing like the American, English, or Spanish Civil Wars.

      They redefine “civil war” to include any intranational violence; but they rely upon the terrible history of the American Civil War to make people think that Iraq is being torn to shreds.

    • Calling Bush “partisan” because he says “here is why I decided on this particular policy.”

      They redefine “partisan” to include any remark that touches on a policy of one person; but they rely upon the negative connotations of a “partisan” as a tribalist who believes “my party, right or wrong.”

    I hadn’t realized that they’ve used the same technique in the judicial sphere; but I can’t say I’m surprised, either.


    Dafydd (6e94cd)

  10. i don’t recognize antonin scalia and clarence thomas as being conservative in the same way that i am conservative. this word is misused a lot.
    another word that is misused a lot is “activism”. in jurisprudence, it generally means a willingness to diverge from constitutional guidelines, but even this definition is purely subjective because it assumes a constitution with a universal, objectively determinable meaning, which of course does not exist.
    while the new york times standard is flawed, it does measure a judge’s willingness to diverge from legislative guidelines, and patterico’s disparagement of this standard works as a disparagement of the legislature itself in favor of the judiciary. i dissent.

    assistant devil's advocate (d2f92a)

  11. Shorter Patterico:

    It’s judicial activism when liberals do it.

    Lots of words, simple thesis.

    Kimmitt (80218d)

  12. Shorter Patterico:

    It’s judicial activism when liberals do it.

    Lots of words, simple thesis.

    Quite wrong.

    For example, the majority in Texas v. Johnson, the flag-burning case, was right: while arson is not protected speech, a law that singles out flag-burning violates the First Amendment. That opinion included a mix of conservatives and liberals. There were dissents from Rehnquist and Stevens.

    Rehnquist’s and Stevens’ dissents were examples of judicial activism, drawing distinctions having everything to do with their personal preferences and nothing to do with the law or logic.

    In my opinion.

    Patterico (de0616)

  13. Patterico:

    Hm… actually, I think Brown v. Board of Ed was judicial activism; there was nothing in either the Constitution nor federal law that required an end to segregation, and Plessy was a perfectly valid decision.

    Brown was judicial activism — at its rare best.

    It’s very similar to jury nullification; call it “judicial nullification,” if you will. The majority (in this case, that meant all nine of them) came to the correct conclusion that separate would always mean unequal; it’s correct, but surely that’s a legislative decision, not a judicial one?

    Ne’ertheless, the Court ruled such that the only response would be massive desegregation throughout the South and elsewhere.

    Like jury nullification, 99% of the time and more, judicial nullification is a wretched idea; either it’s in a bad cause, or the unintended consequences are worse than the original problem.

    But in a tiny percent of cases, it’s vital. Had the Court not ruled in what I consider a judicially active way in Brown, we would still have legalized segregation today in many parts of the United States, with all its evils, ills, and inequalities.

    The problem is that those who support judicial (and jury) nullification wildly overuse it. Rather than being the “nuclear hand grenade” it actually is (50-foot throwing range, 5-mile blast radius), they treat it as a routine arrow in the quiver of abstract justice.

    Thus, you have Thelton Henderson, my favorite example of judicial activism, who overturned Proposition 209 on 27 November 1996 — just 22 days after passage — because the proposition which outlawed racial discrimination was “racially disriminatory.”

    Judge Henderson personally supported affirmative action; so he overturned Ward Connerly’s anti-affirmative-action ballot initiative. It was as simply as that: Henderson appointed himself a “super-elector” whose lone vote could overturn the vote of the California people.

    That is the model of the vast majority of “judicial nullification” cases. But if we banished even the thought of such activism from our minds, besides not getting Roe v. Wade, we also wouldn’t have gotten Brown.

    So JN (both of them) should be as rare as snow in Los Angeles… but not as rare as snow on Mercury.


    Dafydd (6e94cd)

  14. Brown had an activist rationale, but Bork has convincingly argued that there was an originalist way to get to the result.

    Patterico (de0616)

  15. Dafydd, I disagree. The Fourteenth Amendment, by its terms, neither prohibits nor endorses segregation per se, but the Equal Protection Clause clearly does prohibit invidious discrimination, which everyone knew was the only reason for the segregated train cars at issue in Plessy or the segregated schools at issue in Brown. So while Brown did have some “activist” elements (e.g., the court issued a longwinded opinion, citing far too much social “science” and ruling more broadly than necessary to resolve the issues before it), its basic holding was a reasonable construction of the Fourteenth Amendment, not an act of judicial activism.

    If anything, Plessy was judicial activism of a different era, coming from a Supreme Court that had little use for the Fourteenth Amendment and was all to eager to “interpret” it virtually out of existence.

    Xrlq (51d90f)

  16. Patterico (regarding Texas v. Johnson:

    Rehnquist’s and Stevens’ dissents were examples of judicial activism, drawing distinctions having everything to do with their personal preferences and nothing to do with the law or logic.

    In my opinion.

    Nah, c’mon. That’s almost as bad as Kimmitt’s shorter my enemy summary, just substitute “guys Patterico disagrees with” for “liberals.” I agree that Texas v. Johnson was correctly decided, but I don’t think the dissents were frivolous. Reasonable (or at least, not patently unreasonable) constructions of the law should not be decried as “judicial activism.”

    [I’ll give you this: it’s been quite some time since I read them, so I’m going off a distant memory. But the part I remember thinking “bullshit!” on was, I believe, Rehnquist’s, where he explained that the flag was just *different* from other symbols of America, to the point where states could therefore constitutionally protect it. There were a lot of references to the Star-Spangled banner (which even Denny Hastert doesn’t know the words to) and such. Very unconvincing as constitutional law. — P]

    Xrlq (51d90f)

  17. Brown had an activist rationale, but Bork has convincingly argued that there was an originalist way to get to the result.

    Is that activism then, Non-originalism?

    actus (10527e)

  18. That comment makes even less sense than the stuff Actus usually writes.

    Xrlq (51d90f)

  19. Brown I was not judicial activism but Brown II probably was. I guess it depends to what extent the courts usurp legislative or executive authority. (Or to what extent they rewrite the Constitution. Bolling v. Sharpe has been overshadowed by Brown but it “incorporated” the Equal Protection Clause of the Fourteenth Amendment into the Due Process Clause of the Fifth Amendment. Where can I get my hands on that time machine?) I would say that Gideon v. Wainwright was judicial activism but Escobedo v. Illinois was not; Weeks v. US was not but Mapp v. Ohio was; McNab was not but Miranda was; Griswold v. Connecticutt probably was not despite its ranting but Roe v. Wade definitely was despite the history and science lesson.

    Closer to the topic, the NYT simply reflects the liberal “ratchet” view. Liberal policies must be propagated and expanded. It is judicial activism to limit them or narrow them.

    nk (41da82)

  20. For clarity for those who are not lawgeeks: Griswold v. Connecticutt had no reasoning that remotely resembled the factual situation or the personal or constitutional issues at stake. Justice Douglas just let his imagination run wild about what the police might see should they kick down his bedroom door while he was in there with his young enough to be his granddaughter bride.

    nk (41da82)

  21. @dafydd:
    you’re right on the money about thelton henderson. guess what he’s up to these days?
    a week ago, i got a letter from the university of california. it’s a joint project of hastings and boalt…
    “the law school admission project: looking beyond the lsat”
    “we invite you to participate in vital research to create a new type of law school admission test. we need your help for the final and most critical stage in this research. unless large numbers of volunteers participate, this opportunity to improve admission practices will be lost.
    research goal: current admission methods try to predict who will get good grades in law school. our new tests try to predict who will be effective as a lawyer. evaluating a wider range of job-oriented qualifications should help both to select better lawyers and to increase racial diversity using merit-based and non race-conscious factors in choosing among applicants.”
    26 years out of law school and 11 years out of the law, and they want me to take two hours out of a beautiful day to go online and…and take their new lsat! they promise me a “confidential report on your individual work strengths and shortcomings. optional. if you choose to ask for it, it would come only to you, immediately, by email.”
    at the bottom of the page, judge henderson is one of the people “urging your participation in this research.”
    so that i can be reduced to a set of data points across criterion fields, and that the performance of a large number of volunteers in these criterion fields can be analyzed to determine which ones members of certain groups do better on, so they can be incorporated, perhaps verbatim from the test test, into the real test, ironically making it more difficult for members of my own group to get into law school in the future.
    judge henderson, i’ll help you out. how did you get in?

    assistant devil's advocate (0fe5d2)

  22. Minor nit here, Brown didn’t overturn Plessy – go read the case…

    Miss manners (e2e63c)

  23. Indeed, you are correct. Thank you. I knew this but had forgotten it. I have updated the post.

    Patterico (de0616)

  24. nk, good comment, and you’re right, Bolling v. Sharpe was the “activist” decision — some would say the next step on the downhill slide of the slippery slope onto which the court ventured in Brown. But that wouldn’t be fair, of course. The Brown and Bolling cases shouldn’t be considered only as the products of a judicial philosophy, but should be considered in their full historical context. They were about Jim Crow segregation — what you might call (quasi-)slavery’s resurgence. The issue which had split the nation a century earlier was doing so again, although not, at least at that point, so violently, and the violent resolution of the issue by extra-judicial means had been ratified by the post Civil War amendments to the Constitution. But the collapse of Reconstruction, the perpetual filibuster blocking efforts in Congress to enact legislation carrying out the purposes of the 14th Amendment (pursuant to the enforcement clause) created a moral justification for judicial activism. For that one purpose only, of course. At least at first. Or maybe until the next time it’s impossible to achieve a policy change through the legislative process.

    Nothing that the Court has done since Brown changes my view that the activism of the Court in Brown/Bolling was and is morally justified. But it should make us give serious consideration to getting rid of the filibuster, and perhaps creating a legislative override of judicial interpretations of the Constitution, short of amendment of the Constitution. After all, contrary to the left’a position that the Courts are the pre-eminent branch of government during any period in which the left appears to hold a majority of seats on the Supreme Court, nothing in the Constitution makes the judicial branch the only one with responsibility and power for interpreting the Constitution (that position is primarily for the purpose of protecting the imaginary penumbras in which the left pretends to see a constitutional right to abortion — it’s not really an honestly held view. Just wait and see what happens to the left’s support for judicial review if W gets another Justice or 2 on the Court).

    Just as easily as we justify judicial review, we could impose a responsibility for such a duty on each branch, with respect to each of its actions. And we would, but for the judiciary’s own claim to pre-eminence. Instead, we indulge the left’s arguments that the executive has to get a permission slip from the courts to defend the country from attack. But we don’t call that “activist.” Which is probably ok, since there are other adjectives that fit better — such as stupid or weak.

    TNugent (6128b4)

  25. I bet Judicial Activism enjoyed that.

    Dan Collins (c568a0)

  26. Patterico:

    I began responding here to your argument that Brown is not an activist decision, because it “could have been reached through a proper application of originalism.” But I added more and more points, and like Topsy, it just grew.

    Finally, I decided this was ridiculous; my comment was nearly as long as your original post! So I extracted it to a post over on Big Lizards, Essential Activism. There my post sits, awaiting a reader so filled with ennui that he has nothing better to do that parse the windy rantings of a “sea-lawyer” with delusions of adequacy.


    Dafydd (6e94cd)

  27. #


    That comment makes even less sense than the stuff Actus usually writes.

    Its not that hard. Is anything that there is not an originalist argument for activism? Patterico thinks that there being an originalist rationalization of Brown makes it not activist. If there was an originalist argument for Plessy, would that be not activist?

    actus (10527e)

  28. yes, that would be not activist, or at least, not inherently activist. “Inherently” may have been my real disagreement with Patterico over Texas v. Johnson. I think wrong but non-frivolous arguments could be made that the First Amendment does not guarantee a right to burn the flag, or to express your political views in any other manner other than literal speech or the press. However, just because such an argument could have been made, it doesn’t follow that Rehnquist and Stevens actually made it.

    Similarly, Brown was in many ways an activist decision even though it didn’t need to be. Sharpe v. Bollinger was even more brazen, though it too could have been decided on narrower, more defensible grounds, e.g., by construing Congress’s power to govern the terroritories to extend only as far as the powers of the states (or, if even that sounds to “reverse-incorporation” for your tastes, by implying that the Fourteenth Amendment itself to apply not only to literal states, but also to every other legislative body that has the police power anywhere in the US).

    As to Plessy, I’ll concede in the abstract that if a decent originalist argument can be made to support it, the decision should not be deemed inherently activist. I still think it was that way in practice, though, having come from a court that clearly didn’t think much of the Fourteenth Amendment (they’d recently nullified the privileges or immunities clause, too), and seemed bent on thwarting its impact any way they could.

    Xrlq (51d90f)

  29. As to Plessy, I’ll concede in the abstract that if a decent originalist argument can be made to support it, the decision should not be deemed inherently activist.

    Thats the problem I have with the definition that says that once there is an originalist argument for a decision, it’s not activist.

    actus (10527e)

  30. Thats the problem I have with the definition that says that once there is an originalist argument for a decision, it’s not activist.

    It wouldn’t surprise me if someone came up with an originalist argument against judicial review. But it would be quite activist if judicial review was overturned.

    actus (10527e)

  31. “Thats the problem I have with the definition that says that once there is an originalist argument for a decision, it’s not activist.”

    Hmm. How about this? A decision can use activist reasoning but in the end reach the same result that non-activist reasoning would have reached. In such cases the decision is activist, but the ruling is not. Such decisions can still be dangerous, because the activist reasoning may later be used as authority in other cases.

    Sebastian Holsclaw (f01cac)

  32. Actus, I’m not sure what your objection is. Are you objecting to the idea that Plessy is not deemed inherently activist, as a nonfrivolous, arguably originalist reading of the Equal Protection Clause could have yielded the same result? Or are you objecting to the idea that any decision, including Plessy can be deemed activist if it reaches a result that could also have been reached by a non-activist route?

    Xrlq (30d0d9)

  33. Patterico: Like the Brown decision, you seem to have reached the correct conclusion for the wrong reasons. While fundamentally correct with regards the NYT’s disengenousness/hypocrisy, I actually think its legit to look for a neutral standard to measure “activism”. Its the NYT’s standard, not the attempt to measure “activism” that is at fault here. Unmentioned by either you or the Times piece is the conflation by Mrs. Ringhard of “overturning a state or federal law” with “or overturning one its own precedents”. The absurdity of this can be seen if the court were to overturn Roe. This would be counted as an “activist” decision by the Time’s standards, which is of course absurd.

    Lloyd (ca5075)

  34. XRLQ — speaking for myself, not actus, i’m uncomfortable with the notion that the existence of a non-activist route which was not used can render a decision non-activist.

    ISTM that the reasoning which is used, not the reasoning which could be used, that matters.

    aphrael (e7c761)

  35. Actus, I’m not sure what your objection is.

    AMy objection is with the idea that there being an originalist explanation makes a decision / result (whichever) non-activist. My example is an originalist argument against judicial review. Such an overturning of judicial review would be actiist.

    Or basically the activism of clarence thomas.

    actus (10527e)

  36. Patrick–

    #2 was in the vein of “are you trying to say that the NY Times editors are dishonest and/or fools, or define judicial activism to be what we all know it is?”

    I just felt the obvious was being belabored.

    Kevin Murphy (0b2493)

  37. I’m late getting back to this thread, but Xrlq, actus’ objection seems to be treating the term “activist” as anything but a morally neutral term describing a judge or a court as one which seeks to change the existing order, even if the change is a reversion to an order which conforms more closely to the original intent of the Constitution.

    The problem with using activist in this sense is that activism is not supposed to come from the judiciary in our system, but rather is supposed to come from parts of the government actually charged with responsibility for making policy.

    Pat’s suggestion that “it shouldn’t be activist if there’s an originalist rationale” isn’t quite right, I think, but comes pretty close for something that seems to have been a fairly spontaneous response. With the benefit of several other comments and some time between Pat’s response and this comment, I would suggest that, insofar as a judicial decision on constitutional issues are concerned, if the decision implicitly limits the judiciary’s role to one consistent with originalism, then it’s not activist. A decision by the Supreme Court reversing Marbury v. Madison today, and leaving intact all of the judicially invented changes to the constitution, would be highly activist, because it would remove the principal means by which the effects of previous judicial activism might be corrected. Limiting Griswold v. Connecticut to its own facts and reversing the cases that actually depend on penumbras being something other than a flashback-induced hallucination of Justice Douglas wouldn’t be activist, but would merely be a corrective change.

    TNugent (6128b4)

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