Originalism, Moral Skepticism, a the Ubiquity of the Normative

[Frank Cross]

I understand the alternative view of judicial activism.  Unfortunately, it 
lends itself to little more than ideological protestations.  Liberals think 
conservatives have the law wrong, so they call conservatives activist.  And 
vice versa.

WRT Sean's hypothetical, it is significant that it was hypothetical.  I 
think the democratic branches will very rarely transcend the constitution 
so blatantly and that most cases fall at the margin where 
unconstitutionality is debatable.  In such cases, I would refer to a 
football referee more likely to call holding as activist, given the 
indeterminacy of the governing standard.

But I think a measure that analyzes frequency of striking down statutes is 
of independent value, whether or not it is called activism.  And the 
research that I referenced tries to capture some of the alternative 
definition as well.  For example, in my measure a justice who struck down 
fewer statutes but did so with ideological uniformity would come out as 
more activist than a justice who struck down more statutes but was more 
ideologically evenhanded in the laws he or she found unconstitutional.