Those who beat the drum loudest about being against "Judicial Activism" appear to also be beating the drum loudest decrying the Second Circuit Court of Appeals upholding the District Court's findings against the New Haven firefighters. The hypocrisy of this almost defies description. Had the Second Circuit, (Judge Sotomayor was a part of the three judge panel), overturned the District Court's finding, they (the Second Circuit) would have been "guilty" of judicial activism. The Second Circuit found that the District Court's findings adhered to the law and followed established precedent. The Supreme Court overturned the Second Circuit by setting a new standard by which this case was viewed. In other words, by engaging in a bit of judicial activism. Which is, horror though it may be to some, a necessary part of our judicial system. Otherwise we wouldn't need judges. Everything would be cut and dried, two plus two equals four, no shades of grey.
Here is a link to Senator John Cornyn's questioning of Judge Sotomayor which includes a couple of questions on the New Haven firefighter's case. It's a fair bit of reading so scroll down to the end, the questions at hand are the last two. (However, the whole line of questioning/answers is worth the read if you have the time.)
Sometimes we need to move outside of established law and precedent in order that justice be served. Established law and precedent gave us the Plessy decision, but didn't give us justice. (In 1896, Plessy v. Ferguson was the case that firmly legalized racial segregation in the U.S.) Could established law and precedent of the time found for Plessy instead? Or would that have been "judicial activism" and therefore a bad thing? Therein lies the real question that can be applied to virtually every case where "judicial activism" is decried. The answer of course depending entirely upon to whom one talks.
S/S Cornhusker State
Newport News, VA