Will we start to hear the present High Court being denounced as ''activist''? After Wednesday's drowning of the ''Malaysian solution'', you'd think a fresh burst of ''j'accuse'' from the darker recesses of the commentariat or blogosphere can't be too far off.

We've heard it all before: how dare judges play politics and legislate from the bench; if they want to frustrate the government of the day, then they should get themselves elected.

Indeed, Justice Dyson Heydon is said to have caught the selector's eye, when John Howard was the selector, by publicly denouncing the ''activism'' of the Mason High Court.

The only difference is that our guardians of judicial rectitude aren't so fussed about a group of judges kicking to death a central plank of the Gillard government's policies, otherwise known as ''breaking the people smugglers' model''. The sirens tend to be wailing loudest when it is a conservative government being frustrated judicially.

The fact that the election of judges is the final resting point of the argument against judicial activism shows that it is pretty much a bankrupt thesis.