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No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses of the term “activism,” this definition does not refer to judicial decisions that overrule a court's own precedents and is indifferent to whether the decisions are liberal or conservative in outcome.

The principal advantage of this approach is that it permits a more useful discussion of when activism is legitimate and when it is not. And although we may not be able to agree on whether particular activist decisions are good or bad, we may be able to agree on the criteria for making that evaluation and how they should be used.