Legal Commentary

In this New Republic piece, ?The Battle Over the Court,? Profs. Barry Friedman and Jeffrey Rosen write, among other things, that:

Liberals during the Warren Court era also relied on courts to hand them victories that eluded them in the political arena. Of course, during the Warren era, activism usually meant asking the Supreme Court to bring a few state outliers into line with a national consensus?on racial discrimination, for example. By contrast, Roberts Court-era conservatives are urging unelected judges to strike down landmark federal laws that passed over their objections, at least some of which command broad national support.

I agree with Rosen (and many others) that the "activism" charge (from whatever ideological camp it comes) is often unhelpful.  The debate is not really about the question, "should judges invalidate acts of the politically accountable branches on constitutional grounds?" but rather "When, and why, should they do so?"  That said, I think the above-quoted statement -- even with the word "usually" -- does not characterize well the decisions that conservatives typically regard, and object to, as ?activist.? 

Consider, for example, Exhibit A in the usual conservative critique of overreaching judges, Roe v. Wade.  That decision by the Court, which invalidated the abortion regulations of nearly every state, cannot be regarded as an effort to ?bring a few state outliers into line.?  Nor can the Furman decision and its companions, in which the Court struck down every death penalty law in the country, or the many decisions during the 1970s and 80s that nixed legislatively enacted programs that provided aid to children attending parochial schools.  And so on.  No conservative critic of (liberal) judicial "activism" has Brown in mind.

My sense is that if one compares the allegedly ?activist? (conservative) decisions of the Rehnquist and Roberts courts ? say, Citizens United or the federalism-inspired rulings dealing with the reach of Congress?s regulatory authority or the states? reserved sovereignty ? to the decisions referred to in the paragraph above, it seems that the former involve less second-guessing of the considered judgments and commitments of the political community than do the latter.  Is the presence or absence of such second-guessing a helpful and reliable indicator of bad or good "activism"?  I'm not sure, but it does strike me as a relevant criterion.