President Obama noted on Tuesday that, were the Court to take the “unprecedented” step of striking down the Affordable Care Act (ACA) as unconstitutional, it would be engaging in exactly the kind of “judicial activism” that conservatives have been decrying for the better part of half a century. This has prompted a flurry of pearl-clutching and overblown criticism, much of it disingenuous and strictly partisan – which is of course not news. Obama clarified that his point was that it would be unprecedented – unheard of since Wickard v. Filburn – for the Court to vitiate the modern understanding of the Commerce Clause in order to declare unconstitutional a law regulating the essentials of an industry that is essential to the American economy. If by “judicial activism” one means “thwarting the will of democratic majorities” – and this is what we’ve been told it is, by critics of the practice – then the Justices voting to overturn ACA would certainly look like activists. ...

It is true that what is settled by custom, though it be not good, yet at least it is fit. And those things which have long gone together are as it were confederate within themselves: whereas new things piece not so well, but though they help by their utility, yet they trouble by their incomformity. Besides, they are like strangers, more admired and less favoured. All this were true, if time stood still, which contrariwise moveth so round that a froward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times are but a scorn to the new… ...