One clear sign of an activist opinion is when the Court goes out of its way to deny it is activist. Here are two wonderful examples:
1. Lochner p. 503: "This is not a question of substituting the judgment of the court for that of the legislature."
2. Griswald p. 576: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions."
It is fun to watch for these guilty denials of activism in SCOTUS opinions. It is like when mom & dad come home from a movie and junior tells them "I did not take a drink out of dad's bottle of Bourbon." It is a sure sign that the Court is doing exactly what it says it is not doing.
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