This entry by Timothy Sandefur sums up nicely exactly why the idea that “activist judges” are bad is bunk.
But the principle underlying judicial review is that legislation does not in fact represent the consent of the governed—it represents the consent of their deputies; the consent of a particular legislature at a particular time. It may or may not represent the will of the people, which is expressed in the Constitution. …
I did not, and will not, vote for my representative in the House, Tom Davis. He rarely speaks for me. I’m happy that there are courts to hold him and his cohorts in line with the Constitution. In our current time, rather than “activist judges”, the problem skews more to non-activist judges who accept existing excuses for government excess, or worse, create new excuses.
Clearly our current political discourse has transposed the definitions of active and inactive.