While I certainly agree with Lawler’s earlier post insofar as it makes clear that Adam Cohen’s article in today’s NYT was a train wreck of logic (i.e., Cohen complains in one breath about the activism of the Supreme Court striking down laws, then in the next about the fact that the court did not strike down the federal partial-birth abortion statute, and then in conclusion referred to striking down a federal statute as "the ultimate act of judicial activism"), I am not sure that I would agree with Lawler’s conclusion that the Supreme Court’s decision striking down Louisville and Seattle’s non-remedial use of race was "somewhat activist." I am not sure how he reaches that conclusion, but it would seem that to do so in some way accepts Cohen’s premise that when courts strike down a statute, that is activism. Now, I don’t mean to ascribe this theory to Lawler if it is not what he meant, but it should be noted that this is an increasingly common understanding of what constitutes "judicial activism"--one which does not reflect what the term “judicial activism” generally has been understood to mean.
As I argued here, there is a movement promoted by University of Chicago professor Cass Sunstein and the left to define judicial activism simply in terms of striking down federal statute--a move which permits them to ignore the hundreds of state laws struck down by the Warren Court, and to proclaim the Rehnquist (and now, Roberts) Court as the most activist in history. Of course, this is a thin view of judicial activism--one which could oddly count as an example of judicial restraint a decision upholding a clearly unconstitutional law based solely on the policy preferences of the deciding judge. Such a view does not comport with the general understanding of "judicial activism," which traditionally has been used as a pejorative to describe when courts flip Hamilton’s description of judicial power from Federalist 78 on its head, and exercise WILL instead of JUDGMENT. The simple exercise of judicial review, in this case of a non-remedial program that counts by race for the sake of counting by race in violation of the Fourteenth Amendment, does not meet that definition.