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has intervened to decide some question better left to another institution.
Bush vs. Gore was as "activist" a decision as Roe vs. Wade, but we won't hear conservative commentators arguing that the Supreme Court should have adhered to existing understandings and allowed either the Florida Supreme Court or Congress to resolve the great recount debacle of 2000.
But the second and greater problem with attributing our constitutional travails to judicial activism is that it makes courts responsible for the sins of citizens.
The real activists in our system are not judges fishing for cases to hear so that they can impose their superior moral wisdom on a supine society.
We are the culprits here, because when we feel our just rights have been infringed, we expect courts to be responsive. If a plausible constitutional claim can be made - about our freedom of speech or religious expression, about our treatment by government officials, or the regulation of our property - then, by golly, some court ought to consider the redress of our grievance.
It is true that this resort to the courts has been promoted and even provoked by energetic interest groups eager to find just the right litigant to challenge one policy or another. The great pioneers here were liberal interest groups like the NAACP and the ACLU.
In the 1920s and 1930s, each forged legal strategies to attack segregation and defend civil liberties. Neither attained immediate success.
But ultimately they did, and their example has since been emulated across the political spectrum. Today, conservative interest groups are as enterprising as their liberal antagonists in filing suit on behalf of the constitutional values they cherish. Constitutional litigation has become an equal opportunity employer.
But if modern litigation has acquired a calculated and strategic character, it is still much less of a novelty than we might imagine. Americans have been disagreeing about the meaning of the Constitution and the proper mode for its interpretation almost since it took effect in 1789.
What makes these disputes virtually inevitable is the inherent messiness of our constitutional system itself.
By dividing power among different departments and between different levels of government, it encourages us to appeal to support the authority of whichever institution we think most likely to favor our particular causes. And if you can't carry a majority in any legislative body, then by all means sue.
So forget this guff about judicial activism. The fault, dear citizen, lies not on the bench but among ourselves.
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