Judicial Activism Versus Judging

Slate‘s Dahlia Lithwick has an amusing if ultimately silly column on the gay marriage ban in California and people’s decrying of “activist judges”. She snarks about “activist citizens” and an “activist legislature” and concludes, “That makes everybody an activist in California, just by virtue of the fact that they are acting.”

Ha! So clever! Let’s define a word in a totally absurd way in order to delegitimate its usage.

Or, let’s not. It’s true, certainly, that the label “activist judges” is tossed around too cavalierly and can ultimately mean “judges that rule in a way that I don’t like.” Used properly, however, it’s a useful term.

Black’s Law Dictionary defines judicial activism as, “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”

It’s absurd, then, to talk of “activist” citizens and legislators in this context. Citizens have a right to vote however they wish in referenda and lawmakers are expected to vote their preferences, within the limits written in the constitution or charter that governs their level of government.

Andrew Sullivan approves of Lithwick’s argument and responds with something of a straw man:

The notion that courts have to do nothing in the American system – other than transcribe legislation – is a very strange and unconservative notion. Yes, they should exercize prudence and restraint. But they are there for something.

Nobody serious argues that courts have no role. The constitutional provenance of judicial review is an interesting academic discussion but it’s been widely accepted since time immemorial. Conservatives think the Supreme Court ought strike down black letter violations of the Constitution and to interpret that document either according to its plain language or the historical intent of the Framers/amenders.

Sully continues:

And if they are not there to protect tiny minorities from majority oppression, what the hell are they there for?

To ensure that the elected policymakers abide by the Constitution?

As to the more specific question as to whether the California Supremes engaged in activism by claiming that the state constitution, written in 1879, protected gay marriage, I’m a bit torn. Logically, it would seem that the answer is, Of course. Rather clearly, since marriage in California from 1879 until yesterday was thought to be something that involved “one man and one woman,” it’s rather absurd to conclude that, absent an amendment, there was an intent to institutionalize homosexual marriage in that covenant. But, as Orin Kerr notes, a strict constructionist/plain language reading of the Golden State’s constitution would seem to support yesterday’s decision.

Ultimately, I’m more persuaded by Eugene Volokh‘s “slippery slope” argument. Essentially, the majority used a lot of evidence that California had over time become more gay-friendly, along with some other moves totally unrelated to gay issues, to cobble together their desired policy. (And, incidentally, the easy rebuttal to their argument is that the legislature stopped short of legalizing gay marriage.)

So, yes, I ultimately think this was judicial activism. The majority overturned centuries of precedent in overturning recent law reinforcing that precedent. In overturning the clear will of the legislature and the electorate to do something that they’ve always had a right to do, the court substituted their preferred policy outcome. That’s not their assigned role in the system.

Conversely, if, say, the legislature had passed a law saying that one must either graduate college or attain the age of 30 to marry, it would be well within the realm of judicial power to overturn that. The constitution sets majority at a lower age (18, with some exceptions), there are centuries of precedent arguing for a right to marry at majority, and creating a college exception would likely be constitutionally dubious as well.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    There’s more than a single side to the judicial activism coin. Not only does the character of the ruling constitute activism but what cases a court elects to hear does as well.

  2. yetanotherjohn says:

    There is a saying that you should be careful when you pick your enemies because over time you will come to resemble them.

    Those who rejoice in finding non-specific wording in an 1878 constitution to justify the position they enjoy today should consider the same concept being applied to force things they don’t like.

    Any short term advantage is likely to be lost by the counter push of being forced to a position without getting a direct or indirect vote.

  3. Bithead says:

    Ha! So clever! Let’s define a word in a totally absurd way in order to delegitimate its usage

    Thus shutting down any reasonable discussion and debate on the matter. Funny how often that comes up on this issue.

    To ensure that the elected policymakers abide by the Constitution?

    Well, exactly. It strikes me as telling, but not unexpected that the point crosses Sullivan’s mind only secondarily, if at all. Of course we know what is at the center of all his thoughts, anymore… the one aspect of his life that drives all others, including is until recently professed catholosism.

    But, as Orin Kerr notes, a strict constructionist/plain language reading of the Golden State’s constitution would seem to support yesterday’s decision.

    Yes, I’d say that’s true. However, I think it’s time to honestly examine why that is true. My take? Because when the constitutions were written… both the national and the state… certain assumptions where made, and homosexuals were not one of them. The assumption has always been that of the culture… IE; a marriage is a man and a woman.

    I don’t substantially disagree with you main thrust here, James… but would suggest a different approach to getting there. Was yesterday’s action of itself judicial activism? In terms of a strict reading of the laws and rulings that have come down in the last several years, no. But is it the culmination of dacdes of judicial activism? Unquestionably.

  4. floyd says:

    All social structures are, at their root, merely systems of Coercion and Domination! Therefore all law is the whim of the powerful!
    This is why a republic is obligated to promote people on the basis of Principle rather than provincialism.

  5. Bithead says:

    Floyd:

    Whose Principle?

  6. PD Shaw says:

    I don’t see where Prof. Kerr noted that a strict constructionist/plain language reading supports the decision. All I see him saying is that the court strictly scrutinized the classification.

    I agree with the view Prof. Volokh discussed. The court may not have directly substituted its judgment for the legislature, but by extending values that it found in other legislative acts, it effectively did so.

    I find this troubling from a pragmatist p.o.v. Any body who wants their state to protect homosexuals from discrimination will have to confront the additional baggage that the Massachusetts court used such laws to require legal sanctification of same-sex unions. Any body who wants to recognize same sex unions will have to confront the additional baggage that the California court found such unions to be discriminatory. The loss is compromise and incrementalism.

  7. Brian says:

    You activist writers drive me crazy.

  8. Richard Gardner says:

    Having hoisted a copy of the California Constitution, I think it is misleading to state,

    the state constitution, written in 1879

    The CA Constitution, like that of many States is unlike the US Constitution is that it is a huge document with much minutia (such as the banning of hydraulic mining and dueling) and has many amendments (and initiatives) each year. The thing is as big as The Bible, and has similar contradictions.

    Even so, looking at Eugene Volokh‘s summary of the Court’s reasoning it appears the clauses used in the decision are from the original document (Due Process, Privacy, and Equal Protection).

  9. Alex Knapp says:

    So, yes, I ultimately think this was judicial activism. The majority overturned centuries of precedent in overturning recent law reinforcing that precedent. In overturning the clear will of the legislature and the electorate to do something that they’ve always had a right to do, the court substituted their preferred policy outcome. That’s not their assigned role in the system.

    Actually, the Court relied on clear precedent in the form of a 1948 decision in which the Court ruled a ban on interracial marriages unconstitutional on precisely the same grounds.

  10. James Joyner says:

    Actually, the Court relied on clear precedent in the form of a 1948 decision in which the Court ruled a ban on interracial marriages unconstitutional on precisely the same grounds.

    Presumably, though, the California constitution had some provision in place prohibiting racial discrimination. If not, the 14th Amendment applied to it via Incorporation Doctrine. But “marriage” has meant, since the beginning of time, a relationship between people of the opposite sex.

  11. Brian says:

    If I recall, the California legislature passed a bill legalizing same-sex marriage a couple years back. This was sent to Governor schwarzenegger where it was vetoed. He reasoned that the courts should make the decision whether or not the state’s constitution already permitted them.

    Given that, I don’t see how the Supreme Court’s decision amounts to judicial activism.

  12. James Joyner says:

    This was sent to Governor schwarzenegger where it was vetoed. He reasoned that the courts should make the decision whether or not the state’s constitution already permitted them.

    Well, not exactly. Schwarzenegger Terminates Gay Marriage

    The governor said the state constitution bars the Legislature from enacting a law allowing gay marriage without another vote by the public and that Leno’s bill wouldn’t provide for that vote. Schwarzenegger noted that a state appeals court was considering whether the state’s ban on gay marriage is constitutional and that the issue would likely be decided by the California Supreme Court. “If the ban of same-sex marriage is unconstitutional this bill is not necessary,” he said. “If the ban is constitutional this bill is ineffective.”

    I also criticized Schwarzenegger’s interpretation contemporaneously.

    Schwarzenegger’s position here would seem quite bizarre, turning Republican orthodoxy on its head. Why would such a fundamental public policy decision be the role of the courts rather than those elected to make public policy?

    Presumably, he’s simply arguing that the law is unconstitutional because of Proposition 22. This measure passed overwhelmingly in 2000, adding “Only marriage between a man and a woman is valid or recognized in California” to the books. Technically, it did not ban gay marriage because it was already banned: “Marriage is a personal relation arising out of a civil contract between a man and a woman.” Prop 22 was aimed at ensuring that homosexual marriages performed in other states would not be recognized.

  13. Alex Knapp says:

    Presumably, though, the California constitution had some provision in place prohibiting racial discrimination. If not, the 14th Amendment applied to it via Incorporation Doctrine. But “marriage” has meant, since the beginning of time, a relationship between people of the opposite sex.

    Not as such–prohibition of racial discrimination is an interpreation of the “equal protection” clause. One that, in 1948, was not Constitutional in light of Plesy v. Ferguson, and it wasn’t Federal until Loving v. Virginia. The California Supreme Court relied on the equal protection clause when it found that a ban on same-sex marriage to be unconstitutional. There is a clear line of cases here, and if we were to hold that the judges were wrong in this case, we have to, by the same line of reasoning, question whether the decisions overturning bans on interracial marriage were correct.

    I’m not saying this as a rhetorical matter, but seriously. At the time interracial marriages were overturned by state and the Federal Supreme Court, bans on such marriages had a much longer history in American jurisprudence, and the American public was overwhelmingly in favor of such bans. Indeed, gay marriage polls better now than interracial marriage polled when the Loving case was decided.