While I applaud her attempt to highlight the hidden activism of "conservative" judicators and challenge the "judicial activism" meme, the moderate in me wonders why the middle ground -- the vast majority of judges at all levels doing their best to apply enduring and slowly changing legal doctrines to swiftly shifting gray areas of contemporary life -- gets so little attention.
I think it may be because there are a number of things that are thrown together and not properly distinguished by both sides when it comes to this 'judicial activism' issue. There are, for instance, issues at the theoretical level about how the Constitution should be interpreted, and this is one level at which there are fights over (from one side) "judicial activism" and (from the other side) "living constitution" (to choose just one set of labels under which it is fought). Both labels are simply absurd when applied in this way; this is why I don't agree with the perspective found in the quote from Dahlia Lithwick in Dresner's post. And this ideological worry (which is the aspect that Dresner calls "perceptual and rhetorical") tends to be a worry that everyone but oneself is interpreting the Constitution incorrectly.
There is, however, another issue mixed in, namely, a worry about whether the judiciary is being properly checked and balanced within our system, and a concomitant worry about whether it might not be, in myriad subtle ways, usurping legislative functions. Whether one agrees with them or not, these worries always deserve to be taken very seriously. The first worry is congenital: it has been a worry about our constitutional system since it was first conceived, and will, I think, always be one. It is probably impossible to give the judiciary the flexibility that's needed without also running the risk of its overstepping the bounds laid out for it. [I do think, though, that there is something to the whole notion of a notwithstanding clause, like that in the Canadian constitution, in which a legislature can, for a precisely limited but renewable period of time, explicitly ignore a judicial ruling (this can only be done explicitly, for the specific period of time, on certain issues, in the formal acts of the legislature itself -- if any of these are missing, the notwithstanding clause is not in use); this gives the legislature more time to deliberate about its options, and it doesn't extend legislative power very much since as a rule it can only keep up the appeal to the notwithstanding clause on matters that have considerable and stable popular support. It does complicate matters somewhat, and is still controversial in Canada itself; and I'm not sure what the whole set of pros and cons of introducing something like this into the U.S. would be. But it's an interesting idea.]
The second worry, I think, holds that for the most part the whole judiciary has, precedent by precedent, slowly moved or begun to move outside its Constitutional bounds, and that therefore the problem is systemic. I think the reason moderate judges tend to get overlooked is that this worry tends unfortunately to get blended with the above ideological worry: the systemic worry is about something pervasive, and the ideological worry involves on both sides a mentality of if-you're-not-for-us-you're-against-us, so their bastard child is something of a monster. But the systemic worry itself is one that should be respected, since I think it will tend to spring up in any sufficiently involved citizenry, just as worries about whether executive authority is transgressing Constitutional bounds will.
Then again, these issues get very complicated very quickly, so I might be off on any number of things.
