What is judicial activism?
Answer: What ever the people say it is.
Stephen B. Presser and Samuel Marcosson's debate
on Clarence Thomas' potential as Chef Justice has transformed into a more interesting exchange on constitutional originalism
and stare decisis
Each want to avoid a situation were the Judicial is legislating. From the pov of the constitutional orginalist, any decision made by a court that does not fall directly from the constitution is in violation. The other side says that not following precedent (i.e. not adhering to stare decisis) is tantamount to treading on the 'living constitution.' They argue that stare decisis is a long held tradition and is a valid way to keep the constitution relevant in the always changing world.
No new amendment was necessary for the Court a century later [after the ratification of the 14th amendment... "equal protection"] to pronounce that they were, simply, wrong about that. Similarly, the framershaving no experience with a gay rights movement or even with the idea of homosexual identitywould not have understood their handiwork to encompass a right to equal legal treatment of gay peoples' committed relationships.
But I take issue with this side's argument when they say things like:
The Court is, and should be, entrusted with matching the framers' ideals to our world - with the People always having the final say if the Court gets it badly wrong.
(emphasis added) There are two alternatives for changing the Constitution. The people explicitly change it or it is changed implicitly and the people have to act explicitly to reverse the change. The later seems less democratic. Imagine if we elected presidents this way. Bush is appointed by the Supreme Court and We have to muster together a California-style recall if (this is a big if) we REALLY don't like him. [ed. didn't this already happen? [wa. shhhhhh]]
I say that courts can be "entrusted with matching the framers' ideals to our world" to a degree, but they should never get ahead of the voting public and they should be wary when they get close to crossing this line.
It's not clear to me what mechanism would give feedback to the courts about when they are getting close to this line. Judges, for the most part, aren't elected. They're not accountable in that way. What makes them accountable to the people?