Activist judges? What's in a name?

http://seattlepi.nwsource.com/opinion/186690_lithwick18.html

Quote:
A modest proposal, then: Let's invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely "interpreting" the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by "liberal activist judges." And while I am open to better suggestions, here's a tentative offering: "Re-activist judges."

Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the "dignity" of states. Re-activists view Lawrence v. Texas -- last year's gay sodomy case -- as having all the jurisprudential force of a Post-it note. When the 11th U.S. Circuit Court of Appeals upheld an Alabama ban on the sale of sex toys last month, it did so by sidestepping the logic animating Justice Anthony Kennedy's opinion in Lawrence. Ignoring Kennedy's lofty promises of sexual privacy -- his assurance that "there is a realm of personal liberty which the government may not enter" -- the 11th Circuit framed the case as a dust-up over the constitutional right to a vibrator.

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Re-activist judges have adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. Bush's recess appointment to the 11th Circuit, Bill Pryor, expended energy as attorney general of Alabama to support Judge Roy Moore in his quest to chisel the Ten Commandments directly into the wall between church and state. Pryor is entitled to be offended by case law barring government from establishing sectarian religion. But what re-activist judges may not do is use their government office to chip away at that doctrine.

Re-activist judges are able to present themselves as "strict constructionists" or "originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue -- over whether the Constitution should evolve or stay static -- no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn't activism.

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."


--Thomas Jefferson

Letter to Samuel Kercheval, July 12, 1810