The outline of a People v. Court election cry is already obvious. Obama would cite the court's sealing of George W. Bush's 2000 election after the hanging-chads imbroglio, its decision allowing unlimited corporate contributions, and then its striking down of Obamacare, as proof that it needed more liberals on the bench. The President already broke decisively with Washington decorum when he denounced the Supreme Court justices to their faces during his 2010 State of the Union address. "The Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections," he said on that occasion. For all that Alito mouthed the words "Not true," the mud stuck, and was not even removed when Obama himself agreed to take legally unlimited cash from the very super-PACs that he had criticised.

What is unlikely to impress anyone, however, is Obama's bleating about the Supreme Court's "judicial activism", a phenomenon he was very happy to endorse when it went in liberals' favour, as it did almost throughout the 1960s, for example. As Senator Orrin Hatch of Utah put it after Obama's press conference: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is ‘activist'." There are indeed what Judge Robert Bork described in his book Coercing Virtue as "activist, ambitious, and imperialistic judiciaries", but whatever the New York Times attempts to argue in its editorials, John Roberts's present Supreme Court is not one of them.

Genuine judicial activism was evident in American jurisprudence since Marbury v. Madison challenged the Jefferson Administration over patronage appointments. Chief Justice Roger B. Taney's court changed the meaning of the phrase "due process of law" in the 1857 Dred Scott v. Sandford case, thereby massively extending the powers of the court. The Lockner v. New York case in 1905 created a "liberty of contract" concept that was not found anywhere in the Constitution, which made limitations on hours of work unreasonable. Much of FDR's New Deal legislation was initially struck down by Charles Evans Hughes's court. To quote Bork again: "Activist judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law."

The most significant moment of post-war judicial activism came, of course, in 1954 with Brown v. Board of Education, when the Supreme Court ordered the desegregation of public schools on the basis of the Fourteenth Amendment. Now, because that decision turned out to be the courageous, prescient and morally correct one, judicial activism was given a good name that it went on not fully to deserve in other cases and at other times. In the 1960s and 1970s, the court actively sought out cases regarding affirmative action, civil rights, abortion and the church-state separation in order to change American society, often leap-frogging public opinion. As the great Professor Alan Dershowitz of Harvard says of judicial activism: "It depends on whose ox is being gored."