once more into the breach

Jeffrey Dubner sits down with Thomas Keck to discuss "judicial activism":

The phrase “judicial activism” is a frequent whipping boy, but what does the phrase actually mean?

The epithet essentially means “a judicial decision I disagree with,” but there can be some content to it. The definition that makes the most sense to me is that an activist court is a court that is relatively willing to assert its own power over and against the other institutions of government....

Can you give us some examples of particular topics that they’ve been activist on?

Of the liberal activism, the most noted example is the continued reaffirmation of Roe v. Wade. Another great example is the area of gay rights, where it’s been the Rehnquist Court that has for the first time extended constitutional protections to gay and lesbian rights -- in 1996, with Romer v. Evans, and then again in 2003, with Lawrence v. Texas. And there are a lot of examples in the areas of free speech, freedom of religion, and other rights in the liberal, Warren Court tradition.

On the conservative activism side of the fence, perhaps the best set of examples are the cases regarding federalism, a whole bunch of separate sets of cases whose overarching theme is the revival of constitutional limits on federal government power. It’s not like these decisions have gone that far; they haven’t tried to strike down the New Deal. But the implications of them are potentially sweeping, were they to carry them as far as the rhetoric suggests.

Keck's new book, The Most Activist Supreme Court in History, looks like it merits a read, especially considering its Shakespearean-sounding title.