Judicial activism is alive and well, not just here in Massachusetts in our Supreme Judicial Court, but also in the conservative U.S. Supreme Court. Recently, there appeared an interesting debate in the LA Times on judicial activism in the U.S. Supreme Court.
First, Thomas Miles and Cass Sunstein of the U. of Chicago Law School discussed the judicial activism of the right in Scalia et al. (you know, those Republican hacks who voted for Bush in Bush v. Gore) in their article Who are the bench's judicial activists? ("Looking at the Supreme Court justices' voting records, the lines between activism and restraint may surprise you.") Then in reaction, we heard rebuttal from Edward Whelan who suggested the true judicial activism is from those more liberal justices who voted for Gore: Judicial activism awards fixed! ("Another view of a recent Times Op-Ed on Supreme Court decisions.")
Taken together these two very different views seem to point out the obvious: there is judicial activism on the left and on the right. There's the kind we like, and the kind we don't like, depending on our perspective.
I still agree with Alan Dershowitz that the five majority justices in Bush v. Gore were "corrupt" and deserve our ongoing contempt. But can we ignore the judicial activism of the left, such as that of our own Massachusetts Supreme Judicial Court, in the Goodridge decision that legalized gay (or same-sex) marriage in this state? And if we're really honest, don't we have to admit that even Bork had a point about Roe v. Wade?
We seem to like our judicial activists, however intellectually dishonest they may be, when they do what we want them to do, and we dislike them when they don't. I'm in favor of abortion rights and gay marriage, even if I recognize they were brought about by judicial activists, but I am not in favor of the convoluted, corrupt political decision of Scalia et al in Bush v. Gore. I think one could make a distinction that would explain why the former types of judicial activism are more justified than the latter. But still, if we are going to be intellectually honest, we have to recognize that judicial activism is both a leftwing and a rightwing phenomenon.