I am not even asking them to go that far. I am asking why SCOFLA is engaging in Activism in 2000, but these guys arent.
FCOL, they are hanging their hat on Carl Levin, maybe lugsoul could tell us if Senator Levin has recently become enamored of
textualists, or is he still an Activist man ?
I'm not hanging my hat on Levin. As noted - but denied by you, despite his words - FRIST explicitly acknowledged that, under the law they were passing, a stay was DISCRETIONARY. You contend that the Court SHOULD HAVE understood that the bill read that way because a bill making it mandatory would not have passed. I contend they explicitly did look at that point, and ruled, properly, that if a law that made it mandatory would not pass, then the law that did pass did not make it mandatory.
I've seen it urged - here, in Congressional pressers, by various pundits - that Congress created an implicit requirement for a stay while expressly shying away from creating an explicit requirement, and the the Courts were bound to honor that implicit requirement and violated the will of Congress by failing to do so.
I am at a complete loss as to how discerning and effecting the EXPLICIT intent of Congress, rather than an assumed implicit intent, constitutes "judicial activism." It seems far more plain that taking the course urged here would be a textbook example of "judicial activism."