Another part of what complicates this matter is that the court now grants cert to MANY more cases than they would have in the past, and that someone like the great Justice Marshall would have said some of these cases were non-judiciable political questions. You can fully believe in vigorous activity under Judicial Review but disagree with the Court intervening in reapportionment and elections cases, for instance

Let’s begin afresh:

There is the WHO INTERPRETS axis and the HOW INTERPRETS axis. One’s position on one does not necessarily determine one’s position on the other.

In old-time days, we could have nifty debates about the WHO axis. Real legislative-supremacists walked the earth, and crazy versions of coordinate review theory were espoused by guys like Jefferson. (Madison arguably held a non-crazy version of it.) Today, most conservatives take the Lincoln-line on the WHO question, a position that rejects the judicial supremacy espoused by many liberals, but which nonetheless leaves the SC as the final arbiter of individual cases.

Yes, some conservative con-law guys (Franck’s one of them, BTW) like to stir-up second thoughts about Marbury v. Madison or coordinate review, but at the end of the day, the only WHO question of real interest once a conservative moves beyond simplistic notions of SC finality, is the question of whether the SC should defer to the other branches when the question of HOW to interpret the constitution w/ respect to a particular law is a “close” one. On that issue, Christopher Wolfe and some others are distinctive from other conservatives for recommending greater deference. Of course, the judgment of when “a close call” exists is determined by the case and one’s position on the HOW question.

So, having arrived at the HOW axis, let’s note that Peter mentions three major schools of broadly conservative jurisprudence:

1) originalism: Scalia, Thomas, Alito, Christopher Wolfe, Matt Franck, Ed Whelan, yours truly, and Peter too. This is Peter’s “middle” group

2) natural law: Hadley Arkes

3) libertarian: Randy Barnett, Richard Epstein, David Mayhew, maybe David Bernstein.

There is some overlap b/t 1 and 2, particularly in hating Roe, and some overlap b/t 2 and 3, particularly in liking Lochner and in admiring Justice Sutherland on economic issues.

The differences case-by-case on HOW to interpret between any of these three schools can be pretty darn stark. That should not be a surprise.

But these are not, contra Peter, differences about “how active the court should be.” Positions 2 and 3 would initially require a lot more overturning of laws, i.e., “activity,” but that’s irrelevant to understanding them.

Arkes call to go “Beyond the Constitution” to natural rights, for example, is based on his theory of how the Constitution’s own writers assumed it ought to be interpreted. We might say Arkes is less textualist, but I don’t see what is gained by calling him more activist.

And again, any jurist from camps 1, 2, or 3, might be for legislative deference in close cases, or against it. As might be any living constitutionalist jurist. Hopeless confusion awaits us if we associate judicial activism with opposition to legislative deference.

Franck doesn’t mind keeping the term “judicial activism.” He just doesn’t want anyone defining it as quantifiable judicial review “activity” simply, or conservatives using it (contra to what Peter says about Frank in 5) to describe wrongful non-use of judicial review.

Myself, on the other hand, I want to phase out the phrase entirely. This may be impossible, and needlessly insulting/confusing to non-academic conservatives, however.

But even when the phrase is used correctly, what it denotes is behavior that no judge ever admits to. No judge ever says, “here’s the policy outcome we want, I decide for it accordingly.” The accusation of judicial activism is that the judge, either knowingly or in self-deception, is actually cloaking his policy-desire by using flawed arguments of interpretational doctrine. The flaw and the self-deception might even go all the way down to the roots of the doctrine itself. We conservatives tend to think that no liberal jurist innocently falls into a merely intellectual error of living constitutionalist doctrine–and thus, they’re judicial activists, one and all. Some lie to us, others to themselves.

I think conservatives do admit that the possibility of conservative judicial activism is a real one, by the way. But nonetheless, the limited usefulness of the term should be obvious, as are the potentialities of its causing confusion.