Dahlia Lithwick in Slate:
The public conversation about the judiciary in recent decades has often conflated a broad fear of unelected judges with a clear definition of what judges should do. In the wake of the Jackson Pollock-style jurisprudence of the Warren Court, anxiety about overreaching judges morphed into a widespread sense that judges simply do too much. Conservative groups happily pushed the line that liberal judges were all merely unelected “activists” bent on “legislating from the bench.” But this says little about how a judge should decide cases and much about our fear of the bench. Originalism and textualism aren't the only way to constrain judges, but they dovetail nicely with the idea that if you confine yourself to what the framers would want, you can't make as much of a mess with the yellow paint.
That's how judicial “activism”—a word we all should acknowledge is meaningless—turned into a catchall term for judges who did anything one didn't like. They were, after all, acting. It's only in recent years that we've discovered that the opposite of an “activist” judge is, in fact, a deceased one.
When John Roberts captured the hearts of America during his confirmation hearing, with his language of “minimalism” and “humility” and “restraint,” he brilliantly reassured Americans that at his very best, he would do just about nothing from the bench.
More here.
