Good question, but the answer is pretty easy, I think, and some of the replies to the post in question make the point that I would make, namely, in a nutshell, that Mr. Graber is pulling a bait-and-switch, employing the term “activist”, but supplying his own meaning to it, a meaning foreign than what would be meant, not only by little ole me, but by those with vastly superior understanding of the issue. It isn’t “activist” to overturn poorly-decided precedent; it is undoing an activist mistake, such as overturning Roe would be. An overturn of Roe (using this as one example) would be bringing us back to a place where the states would handle the issue (as provided for in the Constitution), and would undo the so-called “right of privacy”, a peculiar invention used to “justify” Roe. To say that it is “activist” to overturn Roe is to misunderstand completely, then, the very meaning of the term. I don’t know whether Mr. Graber is ignorant or deceitful, but regardless, he is playing fast-and-loose with his terminology.

I know you are a big advocate of not legislating from the bench and for non-advocate judges so when I saw this I thought of you.

How would you respond to Mark Graber’s blog that asserts that the Rehnquist Court is the most activist in US history. Maybe a nice post on this.