While Senators who joined the advice-and-consent House since Breyer's advent eleven years are prepping on the whole confirmation business, security is being heightened to prevent leaks about marijuana smoke and sexual harassment accusations. In this season of SCOTUS retirements, people commenting on the political and legal scene are trying to come up with measures of what makes a good or bad justice.
A favorite term among liberals is "mainstream," a word that was used to describe what President Bush's appeals court nominees were not in. Presumably the "mainstream" refers to what the democratic majority of the American people would prefer, and thus in a sense the term "activist," if one uses it to mean "judge who overturns the preferences of the American people as expressed in Congressional legislation," is another way to say "not in the mainstream."
While I initially had the same reaction as Will Baude to Gewirtz 'n' Golder's excluding invalidated state legislation from their survey, it makes sense to look only at Congressional legislation if you only want to see how the Supreme Court deals with another nationwide branch of government. (Also, to say in overturning the Violence Against Women Act the Supreme Court "is simply deferring to a different democratic branch of government" seems questionable considering states' preferences regarding VAWA, according to the TNR piece Will linked here.)
Certainly the impression I got from the G&G oped was that they were trying to discourage the use of the term "activist": "We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations." If you accuse a judge of being an activist, someone else will say, "But he needed killin'." ("He" meaning an unconstitutional law; "killin'" meaning overturnin'.) The only people who should use the term "activist" as a way of deeming a judge to be a bad one are those who want Marbury v. Madison dead.
Ex Poster Helvedius tries to resurrect the usefulness of the term activist by pointing out how it is preferable to the word "moderate." "Moderate" is a description of the political outcomes of one's decision-making process, and while it is of course useful to politicians and interest groups, it is an absurd term for people in the legal profession. Moreover, to use political terms actually does a disservice to the justices.
It was hardly "conservative" of Scalia to give the accused a leg up by requiring that witnesses against them must give their testimony in open court. This will result in many prosecutions' falling apart because witnesses fear facing the defendant, as with cases involving the Mafia, domestic violence, child abuse and molestation. I doubt that Scalia feels much fondness for criminals, particularly if there's any opportunity to have them executed. But because the text of the 6th Amendment declares that "the accused shall enjoy the right ... to be confronted with the witnesses against him," he penned an opinion, joined by seven other justices (most of whom are less inclined to stringing folks up), that testimony must be given only when the accused would be confronted with the people giving it.
Crawford v. Washington overturned Ohio v. Roberts (1980), and Rehnquist, in a concurrence joined by O'Connor, decried Scalia's opinion for the upset:
I believe that the Court's adoption of a new interpretation of the Confrontation Clause is not backed by sufficiently persuasive reasoning to overrule long-established precedent. Its decision casts a mantle of uncertainty over future criminal trials in both federal and state courts, and is by no means necessary to decide the present case.However, "activist" is only marginally better than the political terms. Helvedius quotes from an interview with Robert Bork to make the case that O'Connor and Kennedy are "activists," with particular reference to this sentence: "The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution ... I would call [the former] activist."
Couldn't Bork just say what he means and declare that in O'Connor's and Kennedy's departures from the "actual Constitution," they were failing to be originalist or textualist or whatever philosophy of jurisprudence he thinks they should have applied? The word "activist" is bullshit because, as umpteen people have noted at this point, it frequently just becomes another word for "not what I would have done."
Activist, as reference to the dictionary (dear God, I'm becoming a textualist) would reveal, has no obvious connection to judicial work. What conservatives want to imply with the term is that judges who make a decision with which they disagree are engaged in activism, i.e. "taking direct and militant action to achieve a political or social goal," rather than disinterested judging. People at Bork's level therefore would consider that a decision different from the one that they would have made, and that results in a political outcome that they darkly suspect the alleged activist to favor, to be "activist."
But this is a lousy way to describe what the justices are doing. Take the Raich decision. Stevens, writing in the majority to let cancerous potsmokers be dragged off to federal prison in order to preserve the federal government's Wickard commerce clause powers, recommends democratic action to change the political outcome of his judicial decision. O'Connor dissents against this use of the commerce clause even though she herself would not have voted to permit medical marijuana; her work as a judge goes against her preferences as a political being.
Even if Bork's meaning for "activist" generally worked, the term has been hopelessly wrecked by his less intelligent political allies, who declared both the state and federal judiciary to be "activist" for failing to keep Teresa Schiavo on life support. That the law gives power of attorney to the spouse was no barrier to such pro-life activists' clamor about how the judges had screwed up.
A quick note regarding Matthew Yglesias's remark, "When an issue is litigated for the first time, the best way to preserve [the rule of law] is to do the best one can to stick to the original understanding of what the law said." Probably with raised eyebrows, Will restates this as "In other words, Yglesias endorses a regime of strong precedent followed by originalism. Are we all originalists now?"
Certainly the praise Matt implicitly gives to Lawrence v. Texas seems to conflict with what most people understand originalism to dictate; the original understanding of the Due Process Clause of the 14th Amendment, in all probability, did not include the liberty of private sexual conduct. Although, because such matters were for the states, there never was anything paralleling a Congressional vote to maintain school segregation in DC, to give us some idea of what the people who brought us the 14th Amendment meant by it with regard to sexual conduct.
However, I think that some explanation of this apparent contradiction might be found in looking at Scalia's deliberate misunderstanding in his Lawrence dissent, when he scorned his colleagues for saying, "Liberty finds no refuge in a jurisprudence of doubt."
That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.As Scalia ignored in the interests of scoring a rhetorical point, "stability and certainty" with regard to Bowers would be detrimental to liberty, unless the kind of liberty our Constitution is intended to protect is the liberty of the government to enforce laws. I don't think the Founders really worried as much about the government's freedom as they did about the people's. The 6th Amendment is all over the rights of the accused, but quite silent about the rights of the prosecutor.
In writing, "What we want from judges is the rule of law -- the combination of stability and predictability that allows people to be reasonably certain about what is and is not illegal," Matt may be trying to say that we need stability in the rights the Court already has declared to be Constitutionally required. So that if we have been conducting our sexual and reproductive health affairs on the assumption that Roe will hold, then the Court overturns it and South Dakota's automatic abortion prohibition* kicks in, this could have a tremendously negative impact due to actions people already have taken.
Or, to choose a less controversial example, suppose the Court declares that the Free Exercise clause no longer protects Amish teenagers from the truant officer. Amish people who live in Wisconsin rather than a state less inclined to enforce school attendance laws against them, and who do so on Yoder's assurance that they were free to take the kids out of school at 13, now have to re-arrange their lives drastically because of the sudden flipflop in policy.
I think one can argue coherently that stare decisis is more necessary in the preservation of liberties than in the preservation of restrictions on liberty.
* According to the Life Legal Defense Fund, South Dakota has a unique "trigger" law saying abortion will be banned there, except to save the pregnant woman's life, effective "on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."