7. Judicial what? Activism, I never heard of it… “Hey John, I got a guy who didnt go to law school asking about this word “activism” what do I tell him?”

Ahhh, the media. What are we going to do with yee! And you you noble and true democratically elected trustees of our nation will you really say anything for a sound bite.  In the safe confines of law school will you rarely find a Professor who will acknowledge the word “activism” is anymore relevant to describe the Court than cold is to describe ice cream. I dare you to ask your con law Professor about whether the the Roberts Court is activist and hell probably look at you and then scribble down an F when you leave his office. As Justice Breyer has so plainly described it activism is nothing more that something to describe the Court when it does something we don’t like. The Warren Court was one of the most activist Courts on record and it was liberal (not political party liberal necessarily–that’s another post), as well as the Burger Court and don’t even get me started on Rehnquist. Opponents rally on the charge that judges have become too “activist,” but they generally stop short of suggssting that the system be overhauled, in part because the idea of judicial guardianship of basic values enjoys considerable public support.  Judicial power is much like other important features of the democratic experiment: federalism, regulation of the economy and presidential authority, accepted in the abstract but controversial in implementation.

When the data is eventually compiled and the empiric’s analyzed the same conclusion will be made of the Roberts Court. So regardless of whether the Justices decide to strike down the health care bill toto, (which would create a new federal/state relationship and really curtail the Feds commerce power keeping with Lopez/Morrison trend)  or uphold it, it  does not matter in regards to labelling of the Court  it to will be considered activist in the end.

So please stop using the word. I will no longer contribute to its use either and we can make the world a better place!

“What was that John… what you say… counter-majoritarian… come on John don’t confuse the kid now”

No No No… Let me show you how to its done! We say what the law is.