Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:
Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.
Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.
"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.
Sessions elaborated :
It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.
The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC . That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”
And it’s worth noting the multiple  studies  that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.
It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.