The complaint was initially hurled at the Warren Court of the 1960s which not only broadened the reach of the Bill of Rights by imposing its requirements on the states, but which used remedies such as the exclusionary rule of evidence and the Miranda warnings to put teeth into the Court's rulings.
More recently, liberal critics have complained that the Roberts Court is guilty of conservative judicial activism--a complaint publicly echoed by President Obama.
In this context it is valuable to read the Harvard Commencement speech given on May 27 by retired Justice David H. Souter. Without naming Justice Scalia, the speech criticizes Justice Scalia's notion of "originalism"--that in deciding cases judges should simply look to the original intent of the framers of the Constitution. Justice Souter calls this the "fair reading model," and he dismisses it as "simplistic" because, in Justice Souter's view, the Constitution is comprised of often open-ended competing values which must then be accommodated by courts:
"The explicit terms of the Constitution...can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice."
Justice Souter's view that the Supreme Court must often choose "between one constitutional good and another one" explains many 5-4 votes on the Court which are often viewed as conservative-liberal splits: the legitimate need of society to gather evidence of criminality versus the right of the suspect to remain silent; the right to bear arms versus the right of society to protect its members from harm. Different "constitutional goods" are in conflict and the plain words of the Constitution do not resolve the conflict--judges must.
Justice Souter's speech reinforces the view that the values, predilections, and background of who sits on the Supreme Court do make an enormous difference in constitutional interpretation. With a Senate confirmation hearing to begin later this month, it is, therefore, fair to try to determine the values and predilections of Elena Kagan, because those values and predilections will make a difference.
The full text of Justice Souter's speech can be found here.