As pundits debate the merits of Obama's Supreme Court nominee Elena Kagan, discussion of "judicial activism" takes center stage. But the accusations of activism are not all being tossed in Kagan's direction. What has typically been a nomenclature used by conservatives is now frequently being touted by the Left to attack the "conservative" justices on the Supreme Court. These criticisms are based on all-too-common distortions of the term's meaning. (I will leave it up to the reader to determine whether some distort it intentionally in order to mislead the American public, who overwhelmingly oppose judicial activism according to its actual definition...)
Among the erroneous definitions of activism is the idea that it occurs whenever the Court strikes down a law. For example, MediaMatters attempts to debunk the "myth" that "liberal" judges engage in activism more than "conservative" judges by citing studies showing that conservative judges strike down legislation and regulation more than liberal judges do. But do we really want judges to uphold all laws, even unconstitutional ones? Would the Court be "activist" if it struck down a statute that, on its face, invidiously discriminated on the basis of race?
Of course not. This facile view of activism is inconsistent with the appropriate understanding of the judicial review as eloquently expounded by Chief Justice Marshall in Marbury v. Madison: "If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply." Courts have a duty to strike down laws that violate the Constitution because the Constitution is supreme.
Judicial activism, rightly understood, occurs when judges make decisions not based on what the Constitution requires, but on their own personal or policy predilections. Contrary to what MediaMatters and many others think, activism does not refer to judges being active in striking down legislation, but being activist in advancing their own policy agenda through judicial decision-making.
Similarly, when we praise judicial restraint, we do not mean judicial passivism---or, reluctance to overturn a law regardless of whether it violates the Constitution. We simply mean restraint from allowing one's own personal preferences to guide his judgment in the case.
Indeed, justices who are truly committed to "judicial restraint" must often cast votes that diverge from their own policy preferences. Take, for example, Justice Potter Stewart's vote in Griswold v. Connecticut, the case in which the Court declared that the "penumbras" formed by "emanations" of certain guarantees in the Bill of Rights grant a right to the use of contraceptives in marriage. In his dissent, Justice Stewart explained that he thought the Connecticut law banning contraceptives was "uncommonly silly," and that he opposed it on practical, philosophical, and policy levels. Nonetheless, he would not vote to overturn it because it did not violate the Constitution.
All judges, including the next Supreme Court justice, should follow the wise example of Justice Stewart in Griswold, who showed great restraint in concluding: "We are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."