> I think the Court erred in this. But it was far from wanton judicial activism.
I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form.
They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law.
They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else.
If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist".
> Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.
This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.