Ethics

The Essential Emptiness of "Judicial Activism"

By Ed Brayton

This is a repost of something I wrote in 2006. The subject matter is crucial to understanding the debate over the upcoming judicial nomination.

As a follow up on the posts over the last few days about the emptiness of the phrase "judicial activism", I would urge those who are interested to read Keenan Kmiec's article on the subject from 2004. It's a thorough analysis of all the ways the term is used, and a history of its usage. At the end, he offers a list of all the various meanings assigned to it, a list that I think demonstrates that it has no coherent, agreed upon meaning and that, more importantly, it depends entirely on a whole host of other ideas upon which reasonable people differ. I'm going to list those meanings here and discuss each of them.

A. Striking Down Arguably Constitutional Actions of Other Branches

Full post as published by Dispatches from the Culture Wars on May 21, 2009 (boomark / email).