Anyone who is candid about these questions will admit that the Constitution itself does not tell courts how to decide them. The Constitution indicates that some values – speech, equality, and liberty – are important. But it does not explain how to balance those values against competing government interests, or even how, precisely, these values should be understood.
Nor, in fact, does the Constitution say that the task of balancing values and interests is given to judges alone. Other people can balance, too, perhaps better than the court. Maybe Congress is better at figuring out what regulations will mitigate the corrupting influence of money on politics. Maybe the president is better at deciding what national security requires. Maybe school administrators are better at deciding what measures will fulfill their educational missions.
The key question is not whether judges are activist or faithful. It is when the court should be assertive in enforcing a constitutional provision, disregarding the views of others, and when it should be deferential, respecting their views. Understanding that the key choice is the one between deference and assertiveness takes us away from useless rhetoric about activism and back to basic principles of American government.
Judicial review is the court's contribution to the separation of powers, its role as check and balance in our system of divided government. The question we should ask is when do we want the Court to be a meaningful check on the president and Congress, a meaningful supervisor of the states? And when do we want the political branches to have the last word?
With this question in mind, we can evaluate the court's performance by asking whether its choices of deference and aggression can be explained by any principle. Recent decisions show no obvious pattern.