Lawyer-Wearing-Yarmulka

Note to the NY Times Editorial Board- it's really cute when you try to portray a conservative who wants something to be ruled unconstitutional as being "activist". We conservatives don't believe it automatic deference to the legislature, we believe in automatic deference to the Constitution. If the voters of state approved a slavery statute for blacks, I'd expect it be overturned by any court that hears a challenge to it. It's irrelevant that the court would be subverting the will of the people.

It's conservatives who started the whole "activist" nonsense. Every time a Judge rules against the tyranny of the majority in favor of the constitution with regards to religion or sexual orientation, conservatives rail about judicial activism. Suddenly, they're in favor of the Constitution when it can be used to keep school segregated? I think the Times is just using the word "activism" to show the hypocrisy.

Except when it's a liberal "activists" judge who overturns a law, it's usually based on a tortured, mangled reading of the Constitution, like Roe v. Wade. When a conservative "activist" judge overturns a law, it's usually based on the actual text of the Constitution, like U.S. v. Lopez.

On a side note, imagine if the SC would rule that any law permitting an abortion is unconstitutional, that a fetus is protected under the due process clause. Pretty much every conservative I know and have read would howl that the ruling was a mockery of the Constitution, on par with Roe v. Wade.

Actually there's a lot of scholarship on how to define "activist" and whether the term is useful at all. It's a good political term, but not very meaningful in constitutional jurisprudence because it assumes the correctness of certain constitutional methods of interpretation.

Well said, Nephtuli.