CASS SUNSTEIN IS WORRIED about conservatives “taking over” the courts. By this, I presume, he means “being appointed by the President and confirmed by the Senate.”

Well, I certainly hope that Bush won’t appoint any Borks, and I’ll oppose them if he does. (You can read this article for a lengthy summary of my problems with Bork). But if Sunstein’s op-ed is the best case in opposition to conservative judicial appointments, well, it’s not much.

Sunstein seems worrried that we will see “judicial activism,” which apparently occurs when courts are willing to strike down legislation that has bipartisan support. (Absent from Sunstein’s characterization of such action as “activism” is any concern for whether such striking down is based on, you know, the legislation being unconstitutional. The flag-burning bill had bipartisan support, after all.)

Sunstein is worried, though, that the courts might start thinking about the constitution more. At least he’s worried that “conservative courts might well rule that the Second Amendment raises constitutional questions about gun control legislation.” He doesn’t bother to explain why such raising such questions might be wrong, or anything: I guess, on the New York Times op-ed page, such arguments are superfluous, though Sunstein has in the past expressed the view that the individual-rights interpretation of the Second Amendment is one that has some intellectual force behind it.

It seems to me that discussions about “activism” are beside the point. When courts enforce the Constitution, they are doing their job, whether that leads them to strike down laws or to uphold them. When courts fail to enforce the Constitution, they are not doing their job. Sunstein doesn’t offer an explanation of why conservatives might be wrong about which laws should be upheld and which should be struck down, but without such an explanation, talk of “activism” means little, and sudden enthusiasm for deference to legislatures and to precedents that Sunstein no doubt finds generally more congenial seems like special pleading.

UPDATE: John Rosenberg has some comments, too. Another law professor emailed to me that the piece seemed to have been “phoned in.” Yeah, Sunstein’s capable of better than this.