Conservatives and Judicial Activism

There has been much hay made in the press about the Supreme Court upholding the pledge on a technicality rather than reaching the constitutional merits. (The Chicago Tribune called it a punt; this writer says the court failed miserably when they didn't make a definitive statement about the establishment clause).

There is the old expression about having and eating cake.

It's fine to invoke the spirit of Justice Marshall ("it is emphatically the province of the judicial department to say what the law is"), so long as you recognize that a Supreme Court who says what the law is even when the appropriate case is not before it is, by definition, activist. If you don't like judicial activism, then you can't criticize a court that dismisses a case because the right litigants are not before it; a non-activist court restrains itself to deciding the case at bar, not hypothetical cases. It is not their province to make a "definitive statement" about broad social or cultural controversies. That is within the purview of the legislature or the executive, not the judicial.

Which, of course, just shows that judicial activism for most critics is code for "judges who articulate a version of the law that I don't like."