Judicial activism has long been a term of disapproval, particularly on the political right, which has objected to the apparent creation of rights in the personal sphere not clearly articulated in the Constitution’s text. Before the mid-twentieth century, however, the shoe was on the other foot: Progressive legal theorists argued not for judicial activism, but for judicial restraint, as Congress and the states passed more and more laws restricting economic freedom.

Is some middle path possible, and if so, is it better? The judiciary must not supplant the legislature, of course; nor may it supplant the process of constitutional amendment. That said, however, its legitimate functions are implied in its very name, and the power of judgment brings the possibility of disapproval. This month’s lead essayist, Evan Bernick, proposes to thread the needle, and to articulate a basis for a strong, independent, and engaged judiciary. Joining him to comment will be Edward Whelan of the Ethics and Public Policy Center, Barry P. McDonald of Pepperdine University School of Law, and David A. Strauss of the University of Chicago School of Law.

Discussion and comments will be enabled through the month, and we welcome your comments and questions for our panelists.

Original image by Stephen Masker (Supreme Court Justice Antonin Scalia) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.