In their immediate lead on Elena Kagan, the current Solicitor General and Obama’s reported nominee to the high court, the New York Times reports the following while canvassing Kagan’s views on selected issues:
In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society. “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”Solicitor general confirmation hearing, 2009
In so doing, the Times engages in the Republican fiction that “judicial activism” is, and should be, an issue. It shouldn’t be an issue — at least as traditionally framed by conservative politicians — because it shouldn’t be controversial when courts enforce positive rights, even when doing so overrides the legislature, and we shouldn’t be surprised when courts engage in substantive lawmaking incidental to the resolution of a particular dispute, because this is precisely the role that the Founders expected the federal bench to play. By discussing “judicial activism” as such, the Times accepts that there is a controversy when there should be none. You might as well report as newsworthy that a given scientist “believes” in evolution. We shouldn’t care when federal judges, or candidates for the bench, embrace their constitutional role, even if that role has become somehow controversial.
There’s a measure of redemption in the Times‘ positive framing of the definition of judicial activism, as the notion that “the courts should take the lead in creating a more just society.” But even this concedes that “activism” means the Court leads society forwards, when what conservatives call “activism” is really about leading us back to foundational principles, like equality. This is why Democrats lose debates: we accept the other side’s premise, even though doing so means we’ve already lost.