Commentary, May 1981; reprinted in Walter Berns, In Defense of Liberal Democracy (Regnery Gateway, 1984).
Excerpt:
It was said of the late Justice William O. Douglas, and it was said by way of praising him, that more than any other judge in our time he dared to ask the question of what is good for the country and to translate (or, at least, to try to translate) his answers to that question into constitutional law. In this respect he was the very model of the activist judge, and it is the activist judge who has come to characterize the federal judiciary, especially the federal judiciary in Washington.
Not everyone, of course, agrees that this should be so. Some thirty years ago Justice Felix Frankfurter registered his disagreement with one of Douglas’s judgments by reminding his colleagues that a Supreme Court Justice does not (or is not supposed to) “sit like a kadi under a tree dispensing justice according to considerations of individual expediency,” or, he might have said, according to his private judgment of what is good for the country.