Intentional Neglect: Ahh, yes. Authorial intent once again rearing its seductive head. Fish asks us to dismiss both “textualist” and contemporary applicative (word?) approaches to the Constitution in favor of an awareness that all “styles” are interpretive. We can interpret narrowly, seeking to know what the writers intended only, or more broadly, seeking to imagine what they would have meant if they knew what we know today. But outside of questioning the intent of the writers, the entire practice of judicial review has no meaning, according to Fish.
Perhaps the most helpful point he makes is that “activism” is an unhelpful term, since all judges must actively interpret the law. Precedent comes into it, but only defers a judgment–what judges do. This is something Fish does not address, possibly because of the way “judgment” sort of smacks of individual assessment, something we’d like to avoid if we can. But we cannot avoid it: all people make decisions based on experience and context: SCOTUS may make much more disciplined decisions because of their training, tradition, and background, but they still make them. We need to become much more aware of the role of judgment as a social glue that keeps us from stagnation.