These words -- which echo criticism of the Supreme Court's conservatives by liberal scholars and Democratic senators -- packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.

His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.

Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."

Other conservatives, however, concurred in whole or in part with Ponnuru's view that racial preferences are not barred by the Constitution even though "unwise and immoral" as a policy matter. And Ponnuru was far from the first prominent conservative to echo liberal claims that the conservative justices are guilty of judicial activism.

We can't even agree on the definition of the word, 'judicial activism.'  Pehaps we should have separate definitions with 'conservative' and 'liberal' prefixes.  The Kelo decision was what I would call judicial activism.  By changing one word -- public 'use' to public 'benefit' -- they completely changed our property rights.  

I always think about The Americans with Disabilities Act or Title IX or Campaign Finance Reform and how they were terribly written by Congress.  There should no misinterpretation.  I'd like to think we have progressed since 1787.

How many times must the Supremes revisit the same laws?

I suspect the Democrats intentionally word the laws ambigously hoping the Court will change the laws more to their liking in the future in a way the public would never accept from the legislative branch.

 The 5-4 decisions are so scary.

From above: "The tie," said Wilkinson, "should go to the side of deference to the democratic process."
 

Respectfully, I disagree.  A "tie" should go to the People, not to the politicians.  A tie should go to the most individual liberty. 

Therefore, if you consider the Heller briefs as a "tie" by their arguments, then set aside the arguments and the Outcome should be to toss out the law.

This would also be consistent with Chief Roberts' approach: If in doubt, decide it as narrowly as possible and leave further clarifications to future cases and/or to Legislative attempts to rewrite their laws.  Since to have or not have a gun is very binary, finding the Right of the People to have keep a weapon in their home is as narrow as the Court could find when giving the tie to Rights of the People.  The Heller decision even narrowed it so much to only apply it to the District of Columbia, with application to the states for a future debate of legal briefs.

A "tie" should go to the People, not the "democratic process" (not to the politicians).  This protects minority rights, e.g. from popular but unconstutional majority overreach.  Kelo would probably be a good example of a case that should have gone to the People instead of the "democratic process".  New Jersey corruption reminds us why "democratic process" is fallable, and sometimes unjust.  Deference to the People protects their enumerated and especially their unenumerated rights; e.g. the right to life (and self-defense of their life), to liberty (including eg keeping their property, such as their weapons or their Kelo-like property), and to pursuit of happiness (e.g. if told that a set of tests will be used to decide promotions, then the testees should be compensated/rewarded for passing the tests either by being promoted or, if the tests are thrown out from poor prior construction, then the passing testers should be compensated for their time spent pursuing a false promise).
 

Mike

Further, there is NO ewvidence that the framers meant whites to be treated in any different/lesser way than others regarding the equal protection clause. Congress's power is to ENFORCE that clause, not Change it's meaning/huge difference. Certainly, the ricci and Heller cases can not be argued to be out of the realm of reasonable interpretation, like Roe v. Wade clearly is.  

We could not possibly run this country following the norms of the 18th century founders. Many prominent public institutions such as public schools and police did not exist.

That does not mean we can not take seriously the principles they used to found this country. Principles that even our founders often found difficult to follow. 

1. Ricci was decided on Title VII grounds, not Equal Protection.

2. Restraint and Originalism are not synonymous (nor are activism and Breyer's Active Liberty... or whatever alternate method of interpretation you want to use).

I think Conservatives mistakenly decry activism when what they really mean is they think the text of the Constitution (given its original meaning... or at least some reasonable interpretation) should control the outcomes of the Con Law cases.  

Jim Cotter