Religion & Law

Patrick makes a good point, of course, that the "activism" charge -- lobbed against conservatives in the early 20th century, then against liberals in the 1960s and 70s, and now (again) against the Rehnquist and Roberts Courts -- can be frustratingly contentless.  For some thoughts of mine about what could be the content of the charge, see this exchange between Kim Roosevelt and me, about his then-new book, "The Myth of Judicial Activism."   Roosevelt wrote (among other things) that:

. . . ?judicial activism,? as the phrase is typically used, is essentially empty of content; it is simply an inflammatory way of registering disapproval of a decision. It is supposed to indicate that a judge has decided a case based on personal policy preferences rather than law. . .

And I wrote (among other things) that:

[I]n his recent Walter F. Murphy Lecture, ?Constitutional Virtues? (published in the Green Bag), Professor H. Jefferson Powell took up the question, why does the Constitution bind? Does it have, and how does it have, ?legitimate authority?? Along the way to answering that question, he identifies ?humility? as a constitutional virtue, and defines it as:

the habit of doubting that the Constitution resolves divisive political or social issues as opposed to requiring them to be thrashed out through the processes of ordinary, revisable politics. . . . [t]his virtue manifests itself in the continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.

It seems to me that ?judicial activism? might be salvaged, and used as a way of identifying and criticizing decisions?such as, in my view, Casey?that fail to demonstrate this virtue. . . .