Bloodless Coup

In fairness, I and many others view the striking down of legislation as a form of judicial activism every bit as potent, and perhaps even more worthy of restraint, as writing interstitial law, stepping in when Congress has failed. The idea is that an unelected court should overturn the product of the democratic process only when absolutely necessary. By this measure, n.b., conservatives cannot swing the activism brickbat at liberal appointees, because over the past few decades the frequency of the Court's attacks on legislation have grown nearly exponentially, and across ideological lines. Of course, there's a correlation vs. causation issue there, since it's also the case that the number of laws passed by Congress has increased a great deal in that same span, but the fact remains.

Personally, I think the phrase lost all meaning long ago. And for that reason, among others, I find Roberts' employment of it here strikingly vapid, lazy perhaps, resorting to Fox News ticker memes in lieu of a well articulated jurisprudential objection.

But really, judicial review, by its very nature, is judicial activism. And as to legislating in the interstices, well, that's what commonlaw courts do as well. The simple fact is a court is bound by law to decide the controversy before it. It can't punt and say, Ah, well, the legislature hasn't spoken to this, so you're shit out of luck. Come back in a few years and maybe we'll be able to help. That's not what courts get paid to do; they get paid to decide the cases before them. And the less guidance positive law provides them the more creativity they must employ to reach a just, equitable, and rational result.

But the phrase judicial activism -- as far as I'm concerned, it's the jurisprudential equivalent of post-modernism . . . intellectual chicken, or tofu, it has only the flavor of whatever you cook it in.

I don't think we're too far apart. If you define judicial activism as you have - the courts preventing the will of the legislature either by striking down laws or writing them - then there has been judicial activism for over 200 years, and it has been practiced by both sides (didn't FDR have to pack the Supreme Court to get parts of the New Deal past?). Roberts wants to use a lazy club to beat the majority with; it's especially awful since it is clear that his side couldn't muster a sufficient intellectual argument to win any of the other five over. Scalia's comments were also lazily partisan (something about "this decision will cost American lives" or something equally vapid).

Yeah, I heard about Scalia promising more dead Americans. Nice stuff, that. He's really turned into a class act. It'll take a lot of new dead Americans to outnumber all of those who have died for our constitutional values in the past, and I don't hear him bemoaning those deaths. Short memories all around, a ripening of the conditions for the encroachment of if not tyranny than its slightly dumbed-down cousin.

As for FDR, his threat to pack the Court (by increasing the number of justices) is thought to have prompted the existing nine justices to change course on the New Deal. "The switch in time that saved nine," is, I believe, the phrase that gets bandied about.

Or, well, it supposedly prompted one justice to change (Owen Roberts, a Hoover appointee who was the only member of the Court FDR inherited that FDR never had the opportunity to replace as he died a few months after FDR) - his was the "switch in time ...".

As to Scalia, yeah Publius calls that dissent "Malkin-esque". Which isn't too surprising given that he's long been the justice least likely to show a "judicial temperment" in his dissents.