Activist judges

District of Columbia v. Heller illustrates the ideological vacuousness of the phrase activist judge(s), despite its having been adopted by the right as a pejorative for any judge who issues almost any decision with which they disagree. Judges are lawyers, and Supreme Court justices are, for the most part, very good lawyers. Justice Stevens, in his dissent (a dissent that artfully illustrates the error of the majority's analysis even if not sufficiently to persuade the critical 5th vote), made the point in referring to Scalia et al.'s treatment of the introductory “well-regulated militia” clause: “Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.”

One can't help but suspect, from this and other outbursts, that the drafting and conferencing must have been, relatively speaking, incendiary.