An excellent article at Five Thirty Eight points out that while conservatives claim that the Democrats want to appoint “liberal activist judges” to the Supreme Court, statistically, the most activist court in in modern history was the Rehnquist Court, a conservative court.
The same article points out how the make-up of the court — conservative v. liberal — has strongly affected their decisions. In fact, “The whole point of the Court is to rule laws unconstitutional based on justices applying their philosophical interpretations of the Constitution.” Thus, the ritual hazing of Supreme Court nominees, which requires them to promise that they will strictly adhere to the rule of law and judicial precedent, is nonsense. “The attempt to somehow disconnect what the justices actually do and what the nominees must promise they won’t do is a magnificent farce that insults all of us.”
UPDATE: Russ Feingold speaks to this issue head-on, and does a great job!
At this point, perhaps we should all accept that the best definition of a ‘judicial activist’ is a judge who decides a case in a way you don’t like.