A fantastic article this morning by Dahlia Lithwick on those "activist" judges. Here’s the lede:
When it comes to gay marriage, California is a hotbed of activism. Their activist Legislature has twice passed bills that would legalize gay marriage, and their activist governor has twice vetoed those bills. That same activist Legislature also enacted a ban on same-sex marriage in 1977, and its activist citizenry passed a statewide ballot initiative in 2000 doing the same thing. While polls show that Californians are increasingly supportive of gay marriage, other activist citizens have been collecting what now amounts to 1.1 million signatures to amend their constitution in November to say that "only marriage between a man and a woman is valid or recognized in California." But then today the state’s activist Supreme Court got in on the activist action, finding in a 4-3 decision that the California ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." That makes everybody an activist in California, just by virtue of the fact that they are acting. (Let it be noted that it’s particularly activist of the state Legislature and its citizens to be banning and legalizing gay marriage all at the same time.)
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 exercise prudence and restraint. But they are there for something. And if they are not there to protect tiny minorities from majority oppression, what the hell are they there for?
Dahlia’s kicker:
My own vote today is with the governor, who’s smart enough to realize both that activism is an empty label, and that when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what’s constitutional. Moreover, he seems to understand the difference between judicial activism and judicial action, and the fact that the latter is not something for which a court needs to apologize.
The Dish 