Here, the New York Times and UKentucky Law Professor Lori Ringhand outline what it means to be a judicial activist: “Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, which is forthcoming in Constitutional Commentary, justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.”
Sure, it’s objective, but it doesn’t tell us anything. If the laws are indeed unconstitutional (and it is the Supreme Court, not Congress, that makes that determination), then only an activist would uphold them on ideological grounds. Judicial activism is when judges go beyond their defined role of ruling on the law into making the law – i.e. encroachment on the powers reserved to the legislative branch (much in the way that a surgeon should not perform psychiatric analysis on his patients). It is the duty of the Court to review laws to ensure compliance with the Constitution. A justice who engages in such review is not overstepping his bounds – he’s doing his job. Ms. Ringhand’s standard is equivalent to saying that surgeons are overstepping their bounds when they stitch up their patients.
Justices also overturn the Court’s precedent when it is found to be unworkable, or, upon review, was activist to begin with. Again, this is all part of the job description; inventing Constitutional rights is not.
A justice who, despite ideological preferences for a law, votes to overturn it on Constitutional grounds, would be considered an activist by this standard, despite being anything but one. A better standard would be to analyze the deviation from the wording of the Constitution or the creation of five-part balancing tests.