Slippery Sunstein

Legal Affairs Debate Club this week hosted an exchange between Cass Sunstein and Randy Barnett ("Constitution in Exile?"), in which Sunstein exuded his usual slipperiness. I was taken especially by this bit of casuistry:

Let's define judicial activism neutrally, as invalidation of government action.

Sunstein, in his zeal to discredit judges who try to enforce the Constitution, attempts to smear them with the term "judicial activism," which was coined to describe judges who try to rewrite the Constitution. Moreover, Sunstein subtly tries to illegitimate the judiciary by separating it from "government," which he -- as a knee-jerk majoritarian -- identifies with the legislature.