My point, as noted in my original post, is that "judicial activism" is in the eyes of the beholder. If the Court rules in a way you do not favor, you'll scream "judicial activism". What presents a challenge is to articulate a consistent philosophy of judging without regard to whether the outcome under a particular set of facts favors the right or the left.
Allow me to expand on this re "judicial activism" and when it is appropriate or not. It is prima facie inappropriate when the judge is ruling in accordance with his own policy preferences. However, it is appropriate when the purpose is to respect and enforce the separation of powers articulated in the Constitution:
Put simply, Congress passes laws, the President and his agencies enforce them, and the Courts call balls and strikes.
"Judicial activism" is appropriate, for example, when the federal bureaucracy exceeds the authority given to it by Congress.
But Congress should, generally speaking, be left alone to determine the laws as it sees fit. That is why overturning ObamaCare on a technicality would have been the worst sort of judicial activism. The solution to the ACA was and is political, not judicial.
Where the Court can and should have greater leeway to be "activist" is when the issue involved due process. An individual cannot be denied his or her rights without due process of law. This sort of judicial activism was at work in both Roe and Heller. Both can be defended on that basis.
