[...]And, had I been a Texas legislator, I, like Justice Clarence Thomas, would have voted to repeal the sodomy law, but it was not the court's place to do the people's work when it struck down all such laws under an infinitely expansive notion of "privacy.'' Whenever one argues for this kind of judicial minimalism, however, the other side immediately unfurls the bloody flag of segregation.

For the last half-century proponents of judicial activism have borrowed the prestige the court gained by being activist on civil rights and used it to justify judicial legislation in every other field of endeavor. On a recent edition of Inside Washington, for example, my friend and fellow panelist Colby King of The Washington Post characterized my opposition to the sodomy decision as "right out of the Southern Manifesto.''

IT WAS a bit of a stretch (delivered with a bit of a smile). Invoking segregation is a clever tactic and a staple of judicial activism, but it fails because segregation was unique. The argument against judicial activism is that it impedes, overrides and in effect destroys normal democratic practice.

But in the segregated South there was no normal democratic practice. Blacks were disenfranchised. They could not undo the injustice by legislative means because they had been deprived of those very means. It was a Catch-22.

That's why the court had to intervene. That's why the court was right to intervene. It did not mint new rights; it extended to African-Americans the normal rights of democratic participation. [...]