Most people who use the term "activist court" in regard to the Supreme Court -- or to other courts for that matter -- use it incorrectly. Most use it in the context of matters that are exactly what courts are envisioned to do in the US. In other words, they use it in this manner because they simply don't fundamentally understand the role of courts in their country and the history that made them so.
The Supreme Court accepting King v. Burwell was an activist move in and of itself. It shocked most court experts and historians because the very question of the case has been firmly decided. The concepts of this case have been decided even by the members of the court so at odds with the Affordable Care Act as policy. There is not any legal basis for this case to move forward.
But it did.
And now the very nature of the court is at stake. To do anything other than completely side with the government will signal that in this day and age of partisan politics, such partisanship will have fully moved beyond elected politics to the judiciary. In the immediate term, this will hurt millions of Americans directly. This stupidity, this unnecessary assault should not be underestimated in its cruel effect. That said, it is the long-term consequence to the fundamental nature of America that is the greater danger.
A democracy without the protection of a neutral court system that follows precedent is not a democracy. People understand this, even people who don't spend much time thinking about such things.
There is not much in America left to chip away. This could lay the body bare.
For a good read on this issue, see Linda Greenhouse in The New York Times.
5 February 2015
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