Ann Althouse has an insightful op-ed in the Wall Street Journal, which argues that judicial activism is inevitable in a system, like ours, in which the Constitution forces courts to define and protect individual rights. The tough question for Courts isn’t whether to be active or inactive, but how best to define and protect the constitutional rights that courts are institutionally obligated to defend:
There was a time – not all that long ago – when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we’d say. Now we all seem to love to wrap ourselves in the mantle of the new fashion [of judicial restraint]. But that fashion comes at the price of candor.
Hat tip: Jonathan Adler.