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.
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.