Over at the Daily Caller, I explain why newly-minted Justice Kagan should be a judicial activist — but not in the way most people use the term. True judicial activism doesn’t mean legislating from the bench. It means standing up to the executive and legislature and striking down unconstitutional laws. Unfortunately, Justice Kagan seems like she would rather defer to the branches that gave her her new job:
There is a reason why the Supreme Court is filled with Justices eager to defer to the political branches. It’s because the political branches get to pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No Senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judicial passivists.
But there is light at the end of the tunnel:
Justice Kagan was nominated and confirmed because of her judicial passivism. But now that she’s in, she’s in for life. She can stand up for the judicial branch if she wants to. If a case comes before her involving a law that is clearly unconstitutional, her rightful duty is to strike it down.
In many cases, it’s as easy as just saying no.