Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.

The classic example, acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time, is Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in Griswold in 1965 from the Constitution’s “penumbras” and “emanations.” Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since…

In that sense the Court can overturn the mandate and still be far more modest than it was in the gay rights case of Lawrence v. Texas (2003) that overturned Bowers v. Hardwick (1986). And more modest than it was in barring the juvenile death penalty in Roper v. Simmons (2005), which overturned Stanford v. Kentucky (1989). The legal left celebrated both of those reversals of relatively recent Supreme Court precedents.