The Republicans love to talk about how they hate "activist" judges. Their complaint stems largely from their dislike of the Roe v Wade decision and their desire to see it overturned to further
their radical agenda. But, when one looks at the history of judical activism from a big picture perspective, activist judges have done a great deal to aid consumers, increase the reach of criminal law and promote civil rights.
Products liability: At the beginning of teh 20th century, consumers had no cause of action against a company that fraudulently made a product. However, beginning with the
MacPherson v Buick and ending with
Henningsen v Bloomfield Motors, the courts created a cause of action for product liability that is now part of every state's legal system.
Without activist judges, greedy corporations would not be liable for their negligence
Murder: The original English common law defined murder as the express killing of another human being with premeditation. However, English courts slowly expanded this definition to include reckless disregard for human life (depraved heart murder) and the infliction of grevious bodily injury. If the Republicans had their way with this murder statute, they would be letting murderers off because the judge would not be allowed to apply a broad interpretation of the statute's language. There goes their law and order stance.
Civil Rights: Before Brown v Board of Education, the 14th Amendment was limited in application to ex-slaves. However, Thurgood Marshall used the equal protection clause which is expressly written in the Constitution to successfully argue an entire class of people were denied their Constitutional rights. Before this case, equal protection was not a concept at common law. However, if a Republican controlled court used strict scrutiny, an entire class of people would still be disenfranchised.
At the heart of the strict constructionalist arguement for judges is the desire to overturn Roe. So, let's call a spade a spade. First, fight back on this issue. It is not a matter of activist judges; it is judges interpreting the law, doing their job. Next, tell the public that the Republicans want to overturn Roe whenever they get a chance. That's what this whole argument is really about.