inactive judges

Dahlia Lithwick must have read our comments section. The legal writer and editor at Slate gives an interesting contribution to the always fun issue of a judge's job, and attacks the repeated-until-true fiction of "activist judges." Such judges, goes the story, make law rather than interpret law; they read the Constitution through individualized lenses and create rights for individuals or restrictions on government action out of whole cloth.
Rather than jumping into the normative debate on living vs static constitution, though, Lithwick offers a new term to the politicalized world of judge-ness: "re-activist judges." Read her article for a sampling of what judge-types fall into this category. A sampling:

Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the "dignity" of states. Re-activists view Lawrence v. Texas - last year's gay sodomy case - as having all the jurisprudential force of a Post-it note.

Her new lingo is fun, but I'm not sure whether it promotes a key argument with which I'd wager Lithwick and I would agree: there is no such thing as "activist judges;" or, more clearly, there is no such clear division in the judge world into those, on one side, that liberally and recklessly perform the task of deciding cases and those, on the other, that apply the laws consistently and true-to-the-law's-letter to each case.

The false "active" divide.
Judges receive (at least) two briefs for every case wherein capable people argue for opposing interpretations of the law. If a proposed interpretation is laughable, the case is thrown out with potential fines levied on the lawyer. Thus, every case a judge hears has at least two plausible applications of the law to the facts. In this regard, every judge is so-called activist, because every judge must, at this point, decide on a decision-making method. You see, already, the inanity in arguing that one judge interprets and the other makes law, here. If interpreting law in-actively is possible, we need only a machine to apply such law to each case. As it turns out, it is impossible not to be "active."

Here, one argues: But, some judges' method consistently applies the letter of the law, while other judges feel free to liberally interpret laws to meet their desired ends. Submitted evidence will primarily be substantive due process (privacy rights, abortion rights, consensual sex, et al). The argument asks, where in the Constitution does it provide for the right to an abortion?
So goes for restrictions on government action: why does "establishment of religion" mean anything other than the establishment of a national church?

1. Interpreting words
The latter is easier to tackle, as a specific example. The first amendment bars Congress from making any law respecting the establishment of religion. If you are a judge and a case arrives on your desk where one party argues that Congress violated the Constitution in passing a law to put a nativity scene in front of the capitol with a sign reading "All glory to Christ our Lord, may he bless our country," how do you rule? If you decide it is no violation because it does not establish a national church, what led to that interpretation of the first amendment?
In point of fact, such an interpretation is a judgment call. The interpretation asserts that the words say something that they do not; the amendment does not say "respecting the establishment of a nation church," nor, even, does it say "respecting the establishment of a religion," (although earlier drafts did include the article. Because the Constitution does not contain a footnote describing just what establishes religion, a judge must make one up.

The overarching problem here is that we deal with words- and in the Constitution, we deal with a very skeletal arrangement of words. As such, there are two possible ways forward: 1) add an amendment to clarify each issue coming under Constitutional law, or 2) rely on the layers of precedent- judicially evolving the Constitution's language. For better or worse, our country takes choice # 2. (another topic, but I'll assert it is the better choice- as the plethora of amendments would amount to an impossible legislative duty).

In interpreting the words of statutes and the Constitution, the problems arise as soon as the facts do not align to the text (where the law doesn't provide an obvious answer). Here, the judge has the various methods of textualism, statutory intent, reliance on precedent, and on and on. No method is perfect, and none less active than the next. For instance, relying on original intent requires an historical inquiry. Talk to a history professor for an hour if you think one can make such an inquiry without personal interpretation. Deciding, for instance, the meaning of religion in the context of the first amendment involves a massive choice: is the term general or specific (merely baring a national church)? What does "militia" mean in the second amendment? These questions are thoughtfully debated, and one must choose sides.

2. Creating rights.
Our other indictment is against the rights creator. Here, I have less to say because the issue vexes me too. I'm in a grey space on this- not really against substantive due process, but with no huge love for it. For now, as this is already turning into a paper, let me say this: a pox on both houses. No group of judges is more or less "activist" here.
For instance, Justice Douglas relied on a "penumbra" of rights that are created in the aura of the bill of rights- and this generalized liberty gives us the protection of privacy interests. Because of the politicization of abortion, the substantive due process right to privacy is most condemned and attributed to "activist judges."

The eleventh amendment reads, very literally, that a citizen of one state cannot sue another state. But, the Court has interpreted the sovereign immunity to extend to suits by a citizen against his own state, and further, sovereign immunity under the 11th amendment protects states from suits where the state has not given consent to be sues.
Which Justices interpret these provisions that are clearly not in the amendment? Rehnquist, Scalia, Thomas, O'Connor and Kennedy. As Kennedy wrote in Alden v. Maine: sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Sounds, to me, like Douglas' penumbra.

The point, for now, is that substantive due process is a gum on every judges' shoe--providing commentators with easy gotcha points with little research required. We'll debate further on what to do about this gum.