In response to your comment, no I do not feel it is a good idea for "our side" on the Supreme Court to engage in "judicial activism," meaning tit for tat. Judicial activism is ALWAYS the enemy of the Constitution, no matter who uses it, or when, or why, or on whatever issue. Everyone who respects the Constitution should oppose judicial activism with every fiber of their beings.
I don't view this case as that. It looks to be a "common law" thing, instead. Yes, there is such a thing as common law at the federal level. Still, I have my doubts about the logic of the majority -- but no doubts about the practical effects of the decision. I'll spell those out in detail in my monthly column on constitutional law.
Congressman Billybob
Latest column, now up on UPI, and FR, "The Berlin Solution to the Baghdad Problem."