“There is no doubt that if President-elect Obama gets the right people on the bench we will have a much more activist court. It will drive the Federalists crazy.”

You are right, the Federalists will be driven crazy. However, it won’t be because the court will become more activist, but because they will *perceive* it to be more activist. I’m sure you don’t recall, but there were plenty of folks that poo-pooed Brown vs. Board of Education as judicial activism. Or in the way that most people today (except hard core Federalists) would ageree that the bastards on the “strict-constructionist” Waite Court exhibited their own special brand of activism when they decided that the Civil Rights Act of 1875 was unconstitutional.

The point is that Courts are obligated to *interpret* law, not just uphold it. If all the founding fathers wanted was a body of rubber stampers then they wouldn’t have gone through the trouble of creating a Supreme Court. The straw-man that is the “activist judges” argument is really a cry for today’s courts to stop applying common law and to just read statutes as they are handed to them by the legislators. Federalists get annoyed when courts decide cases by taking in to account inconvenient things like facts, precendents, constitutional drafters’ intent, ethics, etc. I lament the sloganism of calling courts with whom you disagree “activists”. I didn’t think that, of all people, you would be flying the “activist judges” flag.

I think it is sad that so called “conservatives” are all too happy to let blow hards on TV smear any judges with whom they disagrees an undemocratic radicals. Instead of conducting intellectualy honest analysis of judicial reasoning they simply dismiss the decisions they don’t like as “judicial activism” or “legislating from the bench”, a favorite catchphrase that really doesn’t mean anything. It is even more sad to find thoughful conservatives doing the same thing.

I wish the Federalists and others on the right would dispense with their feigned legal purity and be honest regarding their beef with the courts. There are plenty of conscientious conservative and liberal lawyers and scholars with very different ideas of justice and social utility, but most of them agree that this “judicial activism” cannard does nothing to protect the consititution and the separation of powers.

Instead of bemoaning so called “activist courts” we ought to be insisting that that judges decisions be clear, rational, intellectually honest, transparent to citizens, and persuasive to those who are trained to evaluate legal decisions.

I’m with you, Brian. The Court is wrong in that holding up this sign (was conduct that could be categorized as “promoting drug use” and that it disrupts the educational mission. What if the student had been in debate class arguing for the legalization of drugs or prostitution? (I know it would be judged on a case-by-case basis, but the examples are not to far apart from the facts in this case).

Free speech doesn’t have to be interesting or profound to be protected. It enjoyes protection when it is offensive, heretical, blasphemy, and “sophmoric”. This was the wrong decision for free speech rights. I’m sad it happened because of a dumb sign that isn’t too different from the stupid t-shirts that you can find at any high school in the country.