Of course one does. One can condemn a bad decision on its merits.
Look, there’s clearly a broad range of possible approaches to interpreting the Constitution (or any constitution or legislation, really).
One can insist on relying on the strict literal meaning of the text.
Or one can supplement the literal meaning with information about what the authors of the text were attempting to do.
Or one can supplement both of the above with information about the changing context in which the legal text is applied. (Brief trivial example: suppose there’s a steep difference in the penalty for theft over $1000. After a period of hyperinflation, $1000 is the price of bus fare. It would seem there would be a legitimate question as to whether the steep penalty should still apply at the same cutoff point.)
Now, option 1 is a complete non-starter. For example, consider “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” Now, every law on the books treats people unequally. Laws against theft treat thieves differently from non-thieves, which an overly strict literal interpretation of the Equal Protection clause would seem to condemn. Clearly this isn’t what the 14th Amendment’s authors intended, and it’s simply a ridiculous outcome.
So we move to option 2. Now, Bricker and Dewey would have us believe on the basis of author’s intent that the scope of equality mandated by the equal protection clause is limited to issues of race. Race, as you’ll note, isn’t so much as alluded to in the text of the 14th Amendment, so if they’re Strict Constructionists in good standing, we must conclude that it’s perfectly permissible to read entirely nonexistent stuff into a legal text so long as one has grounds to believe that the authors intended the text to be read that way.
It therefore follows that, for example, the absence of an explicit right to privacy in the Constitution is on its own not sufficient grounds for disapproving of Griswold et al. One must also have grounds for believing that the authors of the Bill of Rights did not intend to require the government to keeps its hands off a private sphere. Given the published opinions of many of those selfsame people, it’s far from clear that they didn’t intend to do just that. So it seems clear to me that there’s at least an argument to be made here that cannot be simply dismissed by pointing to the text of the Constitution.
Finally, it also seems clear to me that one must take context a la option 3 into consideration at least some of the time. The example I gave above would be a case in point. In a way, of course, this sort of contextual concern might be described as merely an aspect of author’s intent. In the theft over $1k situation, for example, one might argue that the intent of the legislators wasn’t to penalize theft over $1k per se, but rather theft over a certain amount of real value, and that in the case of hyperinflation the particular dollar figure of that real value isn’t really relevant.
In a similar way, one might hear it argued that the authors of the Massachusetts Constitution didn’t intend when writing their equal protection clause to be mandating a right to homosexual marriage (much as Dewey has just dismissively considered the possibility of the Framers intending a right to abortion). Of course, strictly speaking this is entirely true. However, it misses an important point. When the equal protection provisions were added to the MA constitution in the 70’s, homosexuality was still making the transition from being considered a mental illness by the scientific community to being considered a healthy and ordinary variation of human sexuality. So if you were to hop in your handy time machine and talk to the MA politicians of the time, I expect they’d tell you that hell, no, they weren’t intending to mandate a right to gay marriage. But they’d also think you were asking them if they intended to be allowing loonies to act on their delusions. Since that’s not, in fact, what we’re asking, their response to the question when characterized in that way is completely irrelevant. The relevant question to ask is whether they intended to prevent the government from forbidding marriage to a class of citizens where no compelling state interest exists to do so. And then you would most probably get a different answer.
So, to recap. Straight literal reading is a non-starter. Some sort of interpretation is required. And second, there is substantial room for disagreement on what constitutes author’s intent, and how that intent should be understood. So basically, anyone who tries to tell you that there’s only one viable method of legal interpretation, and a judge that goes beyond that is engaging in “activism” is full of hooey. This is not to say that there’s no such thing as judicial activism. I imagine that there are, indeed, cases where judges have pulled stuff straight out of their asses. But the cases most often mentioned, from Lawrence to Roe to Griswold to Lochner don’t strike me as being such cases. That’s not to say that there’s nothing to choose between them. There are plenty of grounds for criticizing a legal decsion besides attacking the legitimacy of the broad approach to legal interpretation underlying them. It’s just that calling the “invention” of a right to privacy “making shit up” when the authors of the Bill of Rights clearly intended for government to have an extremely restricted sphere of influence won’t fly.
I’m not even going to get into the question of rights, except to direct those interested to Jeremy Bentham’s famous quote.