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I agree with the way Rick suggests "judicial activism" might be salvaged as a way of measuring and potentially criticizing judicial decisions.  I also join Rick in agreeing with Powell (as I have mentioned here on MOJ before) that humility, as Powell defines it, is a virtue judges should possess and practice  -- a willigness to work within the Constitution as a tool for debate.  Such humility needs to recognize, moreover, that there exists no single or unitary modality for the interpreting of our Constitution.  The Constitution itself does not set a fixed list of legitimate forms of argument, and the history of the document's interpretation manifests multiple approaches that are all legitimate, by which I mean that the Constitution does not rule them out.  The great irony and dirty little secret about activim is the textualist's deep complicity in it.  Under the guise of pacificism and judicial discipline, the textualist seeks to reduce the list of legitimate modalities to one, viz., his own.  As Powell has noted,  "[a]cademic constitutional lawyers and the occasional Supreme Court Justice sometimes make arguments that the list of legitimate modalities ought to be drastically shortened, which is itself a legitimate form of argument but ought to be recognized for what it is, a proposal for radical reform."  One reason, then, for resisting that proposal for radical reform is its unmitigated lack of humility.  Another is the one I mentioned in Rick's and my exchange on the topic a few weeks back, viz., that textualism falsifies the way in which the making and receiving of law actually work.  I won't repeat that here.

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