What does it mean to be an "activiist judge"?

From Glenn Greenwald's excellent blog today, he quotes an answer given by Sam Alito during his confirmation hearings for a position on the Supreme Court:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Two weeks ago, Alito cast the deciding vote in Ricci v. DeStefano, an intensely contested affirmative action case. He did so by ruling in favor of the Italian-American firefighters, finding that they were unlawfully discriminated against, even though the district court judge who heard all the evidence and the three-judge appellate panel ruled against them and dismissed their case. Notably, the majority Supreme Court opinion Alito joined (.pdf) began by highlighting not the relevant legal doctrine, but rather, the emotional factors that made the Italian-American-plaintiffs empathetic.

You know, Sotomayor has been villified for talking about the advantages of having a Latino judge with a background unfamiliar to the court today. She's talked about the fact that, in a sense, judges do make law since they ultimately interpret the law to determine if it passes constitutional muster.

Republicans claim to despise activist judges and, according to the tenets of the Federalist Society, want judges who interpret the law the way it would have been interpreted by the founders of the US of A. I suppose what they really mean is an activist judge is any judge who rules differently than the way they would like. To me, an activist judge is one who is reversing laws that have been passed by legislatures. That is the only way a judge could "make law".

That means that, if the legislature determines that a city could throw out a test when the results of those passing the test do not reflect in some basic way the population of the citizens there, you might determine that maybe the test is biased toward the group that managed to pass the test. That is the intent of the laws under which Sotomayor made her ruling (along with another in a 3 judge panel) on a lower court. She is now being villified for having that ruling reversed recently by the supreme court.

A fair interpretation of this affair would be to determine that the Supreme Court (5-4) has made an activist ruling. They, in effect, have changed the law and are now preventing New Haven from redoing the promotion test for firemen.

What is particularly stunning in this story is that Ricci, the white fireman for whom the case was named was hired in the first place under anti-discrimination laws. Ricci has dylexia and he was given special provisions in order to pass the exams to qualify as a fireman for New Haven.

I'm telling you, some folks can only see life through their own special prism. I suspect Sotomayor will have an interesting viewpoint and be asking some interesting questions as she serves on the Supreme Court. Whether guys like Alito, Thomas, Roberts, or our good buddy Scalia will be listening is of course another question. After all, it's hard to hear with your ears plugged.