You have been tried by twelve good men and true who are as high above you as heaven is of hell. Time will pass and seasons will come and go. Spring will come with its wavin' green grass and heaps of sweet-smellin' flowers on every hill. Then sultry Summer with her shimmerin' heat waves and Fall with her yeller harvest moon and the hills a-growin' brown and golden under a sinkin' sun. And finally Winter with all the land mantled with snow. But you won't be here to see any of 'em; not by a damned sight because it's the order of this court that you be took to the nearest tree and hanged by the neck until you're dead, dead, dead, you olive-colored, chili-eatin', sheep-stealin' son of a bitch.

-- Judge Roy Bean (on sentencing a convicted sheep thief)

Judge Bean (picture here) was known as "the Law West of the Pecos" and according to most accounts, he did whatever he wanted.

Was he a judicial activist who should have been reined in by Congress? This begs the question of what constitutes judicial activism. I’ve been searching for an easy definition, and I’m more confused than ever before.

The definition of "judicial activism" depends on who’s asking the question. And who's being asked.

Here's Hillary Clinton's definition:

. . . [E]vidence of judicial supremacy is not hard to find. In addition to installing a President, the Supreme Court has invalidated acts of Congress at the most astounding rate ever in our Nation's history. In the eight decades between the Founding and Reconstruction, the Court struck down a federal statute on only two occasions. By the mid-1920s, the Court had struck down about 50 acts of Congress over a 130-year period, far less than one per year. The Warren Court, widely regarded as an "activist" Court, invalidated federal laws in about 20 cases over a 16-year period, slightly more than one a year. In contrast, the Rehnquist Court in the last eight Terms alone has struck down acts of Congress in no fewer than 32 cases-a rate of four cases a year. By any measure, the current Court is one of the most activist, if not the most activist, Supreme Court, ever in American history.

It is possible, of course, that this trendline simply reflects the growth of federal power over the last century and, along with it, an increased need to safeguard personal liberty. We expect the Supreme Court to protect individual rights from what Tocqueville famously called "the tyranny of the majority." In cases where free speech or due process is at stake, that is arguably what the Court is doing.

But that explains only part of the data, not all. In 11 of the 32 cases where the current Court has struck down a federal law, the Court did so not to protect individual rights, but to protect States' rights-in many cases, to protect States from the enforcement of civil rights guaranteed by federal law.

Now, apart from their sheer number, the 11 cases are nothing short of stunning when understood in historical context. The line-up includes the first cases in 60 years where the Court has imposed a substantive limit on what Congress can and cannot do under the Commerce Clause; the first cases since Reconstruction where the Court has limited Congress's power to combat discrimination; and, this past Term, the first case ever to shield States from private complaints before federal agencies authorized by Congress to adjudicate such complaints.

But meanwhile, here’s Alabama Attorney General William Pryor, quoted in the National Review:

Earlier this month, Alabama state attorney general and filibustered judicial nominee William Pryor arrived at Harvard Law School, an institution that The Economist once deemed "the command center of American liberalism." Pryor came to speak on "Christian Duty and the Rule of Law," and in doing so he issued a compelling reminder: The judicial activism preached by countless legal scholars is not the province of only one political party. The activism of the liberal Massachusetts Supreme Judicial Court is no different from the activism of the conservative Alabama judge Roy Moore. And in neither case is it justified.

Judicial activists, of course, supply fuel for each other. Echoing Roy Moore, Alabama judge Ashley McKathan took the Decalogue a step further -- wearing the Ten Commandments on his judicial robe:

McKathan told The Associated Press that he believes the Ten Commandments represent the truth "and you can't divorce the law from the truth. ... The Ten Commandments can help a judge know the difference between right and wrong."

Or is some religious judicial activism more equal than others?

Certainly not! Via Glenn Reynolds, I found my dark side irresistibly drawn to an alternate view of moral restoration:

Consider, for example, the Adams County, Ohio, saga. In 1997 four new high school buildings in Adams County were completed, and a granite monument of the Ten Commandments was placed in each of the four schoolyards next to the flagpole. This project was initiated by the Adams County Ministerial Association and permitted by the Adams County School Board. About a year later a local man wrote several letters to the superintendent of the district proposing the placement of monuments alongside the Ten Commandments that he said represented his religious group, the Center for Phallic Worship. You can imagine what kind of monuments he was hoping to place. The request was ignored. Six months later the ACLU filed a suit demanding the removal of the Ten Commandments monument. The suit named the entire school board as well as the superintendent, by name, as defendants. The plaintiff was Barry Baker, the interim director for the Center for Phallic Worship.

What about the judge who disciplined an errant attorney with a dildo?

Is there a bottom line?

I don't have one. For the life of me, I cannot find a consistent working definition of judicial activism. Perhaps the best one would be along the lines of Potter Stewart's working definition of pornography:

I know it when I see it.

Sam Ervin:

A judicial activist is a judge who interprets the Constitution to mean what it would have said if he, instead of the Founding Fathers, had written it.

God's law will be publicly acknowledged in our court. [It is my duty] not only to maintain the honor and integrity of the court system and the judicial branch, but to restore and preserve the moral foundation of our law.

By any measure, the current Court is one of the most activist, if not the most activist, Supreme Court, ever in American history.

Our American institutions and culture are being undermined today by judicial supremacists…..The assault by Judicial Supremacists against the Constitution and the rule of law is the most serious issue facing our political system. If unchecked, judicial supremacy will continue to grow like a cancer and destroy our republic.

Here is the constitution that overrides the law.

I think it would be better to refer to all judicial activism simply as "hacktivism" -- and condemn it wherever we find it.

That ought to make everyone happy.