Engagement as the New Activism

By LINDA GREENHOUSE
NYT

Remember judicial activism? Of course you do. Not so long ago, Republicans lined up to denounce President Obama’s two Supreme Court nominees as judicial activists before the ink was dry on their nomination papers. Writing in The Wall Street Journal right after Sonia Sotomayor’s nomination in May 2009, Karl Rove advised fellow Republicans that although Judge Sotomayor would almost certainly be confirmed, Republicans should nonetheless seek to score points by “making a clear case against the judicial activism she represents.” The next year, Sen. Orrin Hatch of Utah, undeterred by the fact that Elena Kagan, never having been a judge, was hard to describe plausibly as a judicial activist, explained his vote against her confirmation by saying that “Ms. Kagan’s record shows that she supports an activist judicial philosophy.”

The historian Arthur M. Schlesinger Jr., who more famously gave us the “imperial presidency,” coined the phrase “judicial activism” in an article in Fortune magazine in 1947. But he did not precisely define it, and it’s been clear ever since that the definition lay in the eyes of the beholder – nearly always a disgruntled beholder, since people rarely describe as “activist” a judicial outcome with which they are satisfied. Judicial activism is a protean concept that changes with the times.

So the fact that it is changing again is not in itself surprising. But change is too mild a word for the remarkable inside-out transformation that is now underway. Conservatives are lining up not to denounce judicial activism, but to embrace it – in fact, to demand it of judges whose duty is to “fully enforce the limits our Constitution places on the government’s exercise of power over our lives.” The obsession on the right with wiping the new health care law off the books has nothing to do with it, I’m sure. But what a difference a year or two makes.

(More here.)