Slate recently had an article about a "novel" property rights (so says Richard Epstein, who knows novel in that department; it uses stronger language at times) ruling by Judge Bybee, which brings to mind the whole "judicial activism" debate.
The term is used too often as some hypocritical buzzword, but if use intelligently, it can mean a broad use of judicial power, one that can be defended given the circumstances. How many think requiring a lawyer be supplied to the indigent as a basic rule when they are accused of a crime was a bad thing? Well, at least one around here [that is, the Slate fray] thinks it would be for non-citizens, but still ...
That was an activist ruling. And, it was correctly decided. Actually, if looked at closely, it wasn't as activist as some thought, since the courts were giving lawyers to indigents left and right anyway, so it was more of a rule of clarity. But, that tends to be true for many rulings, including some quite controversial ones, in some ways.
Liberals realize these rulings should be carefully decided and that sometimes the power used will result in judges making bad decisions. How would it be otherwise? The risk is worth it given the alternative is under-enforcement of our rights. And, lower courts provide a useful tool in this area, providing refreshing looks at the law while only having limited effects. Is this specific ruling correct? If Epstein thinks it is a stretch, I truly doubt it, but the fact that some conservative wrote an "out there" ruling doesn't tell me much. I need to know his overall record.
The problem is the hypocrisy, of course. When we do it, it's "compelled," when you do it, it's "activism." That's an abuse of the word. If the word is just going to mean "courts deciding wrongly," it's just b.s. Judge Sotomayor was blamed for not deciding in a "novel" way in a Second Circuit property rights ruling. If you want judges to be "activist," own up to it. Property rights, after all, requires responsibilities too.