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If you were to order the current justices from most Constitutionalist (Conservative) to least (most Progressive/Activist), the order would be:
- Thomas, Alito, Gorsuch, Barrett, Kavanaugh as Constitutionalists/Texualists (what the left calls Conservative).
- And from anti-Constitutionalist (Progressive) side of the court, from best to worst would be Kagan, Sotomayor.
- Roberts is a flip flopper -- generally conservative-leaning, but he tries to play the middle by flip-flopping and is so hands-off the legislature, pro-precedence (Stare Decisis), and doesn't want to hurt feelings, that he'll sometimes do legal gymnastics to tolerate bad/leftist/progressive rulings, or pretend to be their side to be liked.
- KBJ has yet to have a record to know, but she's expected to be worse than Sotomayor because she's black, woke, lied so badly in confirmation, and so on.
- Judicial Activism generally means legislating from the bench: inventing law, instead of just interpreting it... or coloring it based on what you think the law should have said, instead of what it actually said.
- This started with a turn of the 20th century invention by progressives (and the Harvard Law Review) that the Constitution should be imagined as a "living document", that can be changed over time -- and that precedent is more important than original intent.
- So you can "interpret" something to mean what you think it should have meant, then use that in the future.... which means your starting point in the future is not the original intent (originalist/textualist) PoV, but that revised intent (interpretation) invented by other judges, or what you think it should have said... and you go from there, until the final interpretation of the law, looks nothing like the original.
- In the 1960s there were rulings on penumbras, echos of rights that activist judges thought were hinted at by declared rights in the Constitution. Then they used that to imagine in things like a right to an abortion, and so on. Things the Constitution never took a position on, so the 9th and 10th said, "leave it to states, communities, or for the Legislative/Amendment process" not the courts. The alternative is imagine a Judge reading the contract, imaging in wrongly what you meant on something, then arguing with you about it. That's progressive Judges.
- This precedence above prudence and original intent empowers Judges to become oligarchs, twisting the law to fit their morals, and enforcing it on everyone else. (A progressive's wet dream). The left and the media projects that on the other side -- which is why they call the Originalist side of the court activists/oligarchs, when they reverse a decision back to original intent. That's not what those words mean. But it makes them feel good to imagine the other side has the same amorality that they do.
- The right is occasionally activist (or at least makes poor or politically motivated decisions that deviate from actual law), but this is the whole reason for being for Progressives in the first place. Their purpose in life is to push their ideas for progress, no matter what the law says. And so while there are valid complaints against all the Judges for not being legally consistent, no one can re-imagine what they think the law should have said like Progressives.
If there's an obviously wrong side (from an original intent PoV), you stand better than average odds that progressives are going to be on it. Putting their personal agendas far above the actual law (Constitution), national interest, their oaths/duties as a Justice, or caring about the consequences.
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