I am one of those naysayers of judicial activism.
Fair Warning: It's been another ten hour day. This will be brief.
I found this excellent article posted over at National Review Online. I am unfamiliar with the author, but I agree with his conclusions.
Ruth Bader Ginsberg is unfit for her place on the bench. She's not alone, not by a long shot.
We have survived numerous inept, incompetent, and/or criminal legislators or poor choices in presidents. The mechanism of free elections is the great governor of private excess in public office. What we cannot do is allow the continuing, accelerating, and desperately dangerous practice of courts acting as fiat legislatures. The judicial system lives on precedent; a bad decision that is based on a judges desire to accomadate/incorporate more forward thinkers in places like france or Upper Volta is as direct an attack on democracy as would be a general declaring the federal government disolved.
I'm no lawyer. Marbury v. Maddison established redress as a power of the court, and there are places and situations where redress is necessary - but what should be regarded as a last resort has evolved into a casual act.
Look at McCain Feingold. Anybody with an eighth grade civics course would see that MF CFR attracted support not because it promised substantive ethic or legal reform - it was at most a political tool to be used to beat up conservatives in an election cycle. No way it would pass - and if it did, well, Bush is a straight up guy and he'll veto it. Hell no - in his worst political decision (so far) in his presidency he shuttled it on up to the Supremes because they wouldn't lower themselves to such a base position by picking and choosing what part of the first amendment meant "free speech". Bush was wrong. And bloggers stand ready to go to jail to fight CFR's unconstitutional restrictions on political speech.
The courts have been allowed the slack they've gotten because legislators and presidents have been content to pass the buck on too many diffucult decisions.
When the appointment is for life, and the appointees are public in their disinclination to take their duties seriously, then action must be taken.
No, and Hell NO, no term limits or elections.
Make them do their duty, and no more. Impeach any judge who cites a foreign case in respect to a domestic matter. That day. Remove them from the bench, give them a cardboard box and two security guards as babysitters, and give them twenty minutes to clean out their desk. That's how they treat employees who download porn (or jobsearch info, funnily enough) on company computers. It's the least we should do for unelected functionaries attempting to destroy our freedoms.