Dahlia, I love your question about whether the punitive-damages decision is "activist." It tees up one of my hobbyhorses—that there is no more meaningless term in constitutional or political dialogue right now than the claim of judicial activism. Today's pair of decisions in the gun-control case (striking down the District of Columbia's gun ban) and the "millionaire amendment" to the campaign-finance law (striking down Congress' relaxation of campaign-finance limits for opponents to self-funded candidates) further prove that point. In both decisions, the "conservatives" in the five-member majority struck down the handiwork of the political branches on complex social problems. And, in both cases, the four "liberals" vigorously dissented and would have deferred to the political branches' resolution of these vexing social issues.
As satisfying as it can sometimes be to put the shoe on the other foot, I don't think it advances the conversation one whit to call either of today's decisions "activist" or to use that label in yesterday's punitive damages case. It's pejorative and a distraction. It substitutes for a serious consideration of the issues—of whether, in a particular case, a legal limit, set by the Constitution, statute, or common law, has been exceeded. When somebody says, "activist," it often simply means, "I don't agree with that decision." That's what it means, at any rate, when it's not being used merely to score cheap political points. I think it would be much healthier, in politics as well as law, to ditch the label and focus on the underlying questions.
In the punitive-damages case, if the "activist" question was whether the Supreme Court played a legitimate judicial role in setting the punitive-damages rule, the answer, for me, is a double yes. Yes because, as Walter points out, in federal maritime law, federal judges necessarily have a broad role to play in shaping the rules. And another yes because, even when the punitive-damages question does not involve federal maritime law, the punitive-damages issue, as Walter again points out, is strictly a question of punishment, not compensation. It's certainly an appropriate role for federal courts to consider the outer constitutional limits on state punishment. One can have a legitimate discussion about whether Justice Souter's new rule is the correct one and whether, as Justice Breyer argued, $2.5 billion was a more appropriate punishment for Exxon's conduct even though the damage Exxon caused, as the case came to the Supreme Court, was only one-fifth of that amount. But that's a far different discussion from throwing the "activist" label around.
The same is true of the gun case and the millionaire amendment case. I happen to disagree with the court's conclusion in both these cases, and I think the dissents have the better of the arguments. But I don't think there's anything inappropriately "activist" in the court's determinations today that the political branches exceeded constitutional bounds. Justice Scalia's opinion in parsing the peculiarly written Second Amendment certainly is not a frivolous interpretation. I do think his interpretation can legitimately be faulted for giving short shrift to the "prefatory clause" and, as Justice Stevens emphasizes, for strangely not even addressing it until after he's already reached a conclusion on the "operative clause." But the project of construing constitutional language and enforcing constitutional provisions is exactly what courts should be doing, and we shouldn't disparage it as some "activist" frolic, even if there's a lively debate about the correct constitutional interpretation.
The millionaire amendment case is along the same lines. Congress carefully worked out a scheme to try to avoid the one-sided consequences of self-financing, and Congress' handiwork in this difficult area (lifting certain limitations for the opponent of the self-financed candidate) does not strike me as unfair or oppressive. But the regulation of political campaigns clearly raises important First Amendment questions, and it does not advance the ball to try to paint Justice Alito's opinion as "activist," even if one disagrees with his conclusions. Better to focus on any perceived flaws in his analysis.
Let's retire the label of "activist" once and for all, and have at it on the issues.