When Judiciary Committee ranking member Jeff Sessions (R., Ala.) discusses the consequences and dangers of an activist court, Howard Kurtz says via Twitter, “Sessions recites list of activist court rulings by liberals. Conservative activist rulings not mentioned for some reason.”

This morning, Sen. Dick Durbin defended Sotomayor on the New Haven firefighter case, saying that all she was doing was following precedent. Thus we see two defenses deployed against the “judicial activist” charge — “nyah, nyah, you guys did it too” and “the decisions you don’t like are ones where she wasn’t being an activist.” (Notice that inherent to the first defense is the concession that being a judicial activist is a bad thing.)

But it possible that the lower court’s decision or established precedent is wrong? Has any conservative ever argued that every judge should always follow precedent? If we knew the decision heading in, we wouldn’t need to hear the arguments and weigh the evidence.

The concept of “activist court rulings” is getting stretched, perhaps to the point where it’s no longer useful. “Activism” was easy to see when justices started citing “emanating penumbras” and “implied rights” that are never actually spelled out in the Constitution, while at the same time approving previously unthinkable restrictions on established rights. This is how you end up with a court that thinks the First Amendment protects lap dances but not advertising critical of a candidate during an election. Meanwhile, Sotomayor has declared that “the right to own a gun is not a fundamental right,” making some wonder which of the other nine parts of the Bill of Rights she finds optional.

If a law or decision is “bad,” or violates constitutional rights, then judges ought to overturn it. Brown v. Board of Education did not follow precedent. Americans without law degrees may or may not judge a law based on precedent; they’ll do it based on their own sense of common sense, fairness, and justice. (The percentage of Americans who think the New Haven firefighters were victims of discrimination should not surprise us.)