Judicial Activism

Such a dirty word -- and I can't really understand why... Well, actually, I can - at least in the context of "judicial lawmaking" - e.g., "bad activism." I admit, Justice Scalia is often correct in his criticism of his colleagues when they create law by dictate - particularly when that law flies in the face of a constitutional and democratic mandate. Afterall, the court is politically unaccountable and thus has no lawmaking mandate. However, a court action should not be deemed "activist" in nature, or not in the negative sense, simply because it strikes down an act of Congress or the Executive. To be sure, a Congressional statute that bans flag burning or an Executive Order that suspends habeas corpus is just as unconstitutional as an act of positive judicial lawmaking. Perhaps I am biased. Could it be brainwashing via the University of San Diego?? Well, given that disclaimer - I tend to trust judges a hell of alot more to follow the Constitution or, at least, some consistent philosophical principle, over a democractically elected official any of day of the week. In my general estimation, judges should not be deemed big, bad, dirty "activists" simply because they choose not to bow down to the wishes of a majority. The Founders certainly believed this principle and structured the U.S Constitution around the concept. To state the obvious in caveman speak: defined, transparent, rock-solid rules - good, shifting will of a majority - bad. Comparing the liberal and conservative justices sitting on the SCOTUS, Professor Richard Epstein makes a nice point here:

The court's two wings share one trait: They defer only to the government officials they trust. Otherwise, they read a statute carefully to rein in the authority of officials they don't trust. The two factions don't differ in their philosophy of language, or in their on-again, off-again adherence to the rule of law. Rather, the court's liberal wing profoundly distrusts this president, but has great confidence in the domestic administrative agencies that regulate matters such as the environment. The conservative wing of the court flips over. It willingly defers to the president on national security issues while looking askance at expansionist tendencies of the administrative agencies.

Sometimes I wish that both sides were equal opportunists with respect to their reflexive distrust of the political branches and exercised a bit more "good" activism.