About Judicial Activism

One more thing, just to be a grouchy sonuvagun. To all the silly folks who wrote about lawless and oblivious judicial tyrants and the inevitable Gay Agenda of the California Supreme Court: nice job. You sure nailed that one while simultaneously undermining the rule of law.

Look, there's a reason we have courts and laws and constitutions. Decisions of the courts are not "arbitrary." With very few exceptions, judges and juries do their best to rule justly according to the law. But the judiciary is a lot like a computer. You put good laws in, you get good rulings out. You put shit in and the whole place turns into a sewer. (E.g., the endless environmental litigation).

Part of that is some inherent ambiguity in the English language. Hence the mixed decision we got today, upholding the Prop 8 AND the already existing marriages. Often legislators are not clear about what a law is supposed to do. Frequently the courts are called on figure out what to do about changing technologies and the law (e.g. what do we do about the Fourth Amendment and email?)

And the reason this attitude pisses me off so much is because it undermines our system of government and our system of justice. If it is true that there's nothing we can do except bow down to our judicial overlords then we might as well shut up and die or rise up in revolution. If you believe that our laws and constitutions are meaningless then you might as well lay down and die or rise up in revolution.

I don't believe that our options are so extreme and California (yes, CALIFORNIA!) proved it in November and today. Our laws and constitutions are not meaningless. And our courts are not so broken as people claim. The justice system works and works well most of the time. Should we tweak it with appropriate legislation (and props, where possible) and by appointing hard-working minimalist judges? Hell yeah. But exclaiming every time a court decision goes the other way that "the activist black-robed tyrants are at it again" undermines the very point that laws exist for a reason.

There would have been no point to passing Prop 8 if people truly believed that laws and constitutions have no meaning.

More importantly: if it were true that they were activist black-robed tyrants when they ruled against us then it is equally true that they are activist black-robed tyrants when they rule for us. It's the same judges. Nothing has changed except now we like the ruling. So make your choice: either the courts generally work and we should stay the course or the courts are arbitrary, results-oriented tyrannies and we should burn the whole place down. But you can't do both. Make your choice.

Update: Welcome GayPatriot readers. There's lots more today, including posts on Sonia Sotomayor and Justice Alito and one more on Prop 8. Apparently it's an unofficial Law Day here at the blog.

Posted by: Gabriel Malor at 01:18 PM



Comments

1 I love you Gabe.

Will you marry me?

Posted by: Well Hung Chad at May 26, 2009 01:21 PM (d+kiR)

2 The term judicial activism has been so abused that it has become meaningless. I see it as just another phrase like subsidy and loophole which means something {insert aggrieved group} dont agree with

Posted by: Vic at May 26, 2009 01:25 PM (BYokb)

3 http://tinyurl.com/oksbnq

More importantly - when will this shop open a National franchise list?

Posted by: MikeH at May 26, 2009 01:25 PM (LdYLm)

4 if it were true that they were activist black-robed tyrants when
they ruled against us then it is equally true that they are activist
black-robed tyrants when they rule for us.
I don't agree with this. A liberal judicial activist judge rules based on their feelings, their empathy, the living constitution and all that happy horseshit.
A conservative judicial "activist" rules based on the letter of the law and original intent. Big difference.

Posted by: the real joe at May 26, 2009 01:25 PM (4YKVo)

5 either the courts generally work and we should stay the course or the
courts are arbitrary, results-oriented tyrannies and we should burn the
whole place down. But you can't do both. Make your choice.

Wow, someone had their cornflakes shat in this morning.

Posted by: Tom in Korea at May 26, 2009 01:27 PM (9H4sW)

6 No, the difference is that when they follow the law as informed by the Constitution they are judges, when they follow their hearts instead, they are tyrants.


Posted by: Kasper Hauser at May 26, 2009 01:28 PM (ZPwZl)

7 That this is even a topic for discussion indicates there's a problem with the courts.

Posted by: Dang Straights at May 26, 2009 01:28 PM (Haq+B)

8 So make your choice: either the courts generally work and we should stay the course or the courts are arbitrary, results-oriented tyrannies and we should burn the whole place down.
I think you are declaring the either or when its not the case. First this case doesn't prove that the courts generally work right. Broken clocks are right twice a day afterall. So they got this one right. It doesn't mean that they generally work all the time. And just because the system is broken doesn't mean we need to burn it down as you claimed. That's like buying a brand new car because your alternator went bad. Afterall, the system (the car) is now broken. But to get it working again doesn't require some massive drastic action.
But you can't do both. Make your choice.
Its not true/false. Its not Multiple choice either. So no thanks I don't have to. The system is broken and needs to be fixed, is a perfectly acceptable statement to make despite your wishes.

Posted by: buzzion at May 26, 2009 01:29 PM (Lrsi6)

9 Yeah, um, no.

We should be grateful just because the court didn't go nuts and over rule the clear will of the people? I'll pass on that mostly because it's not true.

Prop 8 said in its entirety: "Only marriage between a man or woman is valid in California" and yet the Cali Supreme Court is letting 18,000+ stand. You can go on about the need for specific retroactivity but I'll stick with the actual words of the amendment. It has nothing to do with time, only a category.

The court also stands by its earlier findings in the 'marriage cases' which Prop 8 was created to overrule. Now the fight is about the word marriage, when Prop 8 was supposed to do more.

Perhaps your thoughts would be better aimed at people who run to court with increasingly novel theories designed to circumvent the democratic process.

Posted by: DrewM. at May 26, 2009 01:30 PM (PLGGU)

10 Mr. Malor, what you've just said is one of the most insanely idiotic
things I have ever read. At no point in your rambling, incoherent post were you even close to anything that could be considered a
rational thought. Everyone on this blog is now dumber for having read it. I award you no points, and may God have mercy on your
soul.

Posted by: Kasper Hauser at May 26, 2009 01:30 PM (ZPwZl)

11
This post perfectly paints young Malor's naivete.

Posted by: Unicle, the at May 26, 2009 01:33 PM (shHTe)

12 Gabe,
I think you made a great and often overlooked point - judges have so much latitude to inject their opinions into legal decisions BECAUSE the laws which they are asked to interpret are so vague. Hayek made this very point in Road to Serfdom - when the legislature hands decision-making power to an unelected group, that group tends to take on dictatorial power because it is not checked by the normal electoral process. Hayek was speaking of bureaucratic "central planning boards" and the like but he could have equally been referring to our modern-day regulatory-judicial state.

Posted by: chemjeff at May 26, 2009 01:33 PM (kw6LA)

13 You realize of course that this ruling opens up another lawsuit to allow equal rights to those whose marriages will not be recognized as those whose marriages are. Basically they passed the buck to allow a lawsuit that wont be directly challenging an amendment, because they are afraid of voters...but still willing to overturn their silly laws.

Posted by: verdrangung at May 26, 2009 01:35 PM (fRn+t)

14 This blog is turning into the Volokh Conspiracy without the whimsy.

Posted by: ricky at May 26, 2009 01:36 PM (tAZMF)

15 Sorry, Gabe, but they are judicial tyrants. THIS:
Prop 8: "Your YES vote on Proposition 8 means that only marriage
between a man and a woman will be valid or recognized in California, regardless of when or where performed."

According to the Court, that single mention in an ancillary text
does not demonstrate the voters actually intended that be the result.

I can feel the eyes rolling.

Is utter bullshit. Utter, complete, total bullshit that only a lawyer could find even minimally convincing. There is absolutely no possible way that "regardless of when or where performed" can be considered to NOT apply retroactively. At least nowhere where the english language is understood. This is ridiculous.

So please, do not be claiming that because this ruling was less idiotic than most rulings, we must therefore accede that all is well with the judicial branch. No freaking way. This is yet another example of their making utterly ludicrous decisions in a political attempt to chop the baby in half. It ain't getting -any- better.

Qwinn

Posted by: Capital Hill Memos at May 26, 2009 01:36 PM (/y1J0)

16 I think you made a great and often overlooked point - judges have so much latitude to inject their opinions into legal decisions BECAUSE the laws which they are asked to interpret are so vague.
But along with that can't the judges just go and rule a law unconstitutional when the legislature tries to be more specific. I think the judiciary has led to the legislature being vague in an attempt to keep the laws there so they aren't thrown away as unconstitutional at the first opportunity.

Posted by: buzzion at May 26, 2009 01:37 PM (Lrsi6)

17 The point I've been trying to get across for some time is that the issue isn't whether gay people should be allowed to marry or not; it's whether the federal government should be in the marriage business at all. A law by definition is restrictive, so a law or laws governing marriage is bound to be exclusionary in some way -- and by design, otherwise the government wouldn't bother trying to regulate it. The problem with marriage from a governmental perspective is that marriage is a cultural, religious, and social custom -- and our customs derived from our predominately northern-European forbears. The one-man-one-woman institution is of venerable pedigree, but then so is polygamy. If we decide that the old ways are no longer inclusive enough, then we open the floodgates because we really can't justify on social grounds any kind of federal recognition of interpersonal unions. It seems to me that the government, in order to be evenhanded, has to explain why two men may marry each other, but not three men (or one woman and two men, or five people, etc.).

I mean this seriously, by the way. By what rationale can a state accept that two men may be married to each other, but not three? What benefit does a duo confer to a society that a trio cannot provide just as well, regardless of the gender-ratio of the group in question? Or a quartet? Most of the so-called "reasoning" in this issue is completely specious, and hides the real issues at hand.

Posted by: Monty at May 26, 2009 01:39 PM (/0a60)

18 Sorry Gabe, but you are a weasel.
The language for Proposition 8, like that for Proposition 22 before it, was short, clear, and unambiguous. As was the language for the California initiatives overturning Affirmative Racism and benefits to illegal aliens.
It's one thing to have vague, feel good language in a statute. Garbage in, garbage out happens there.
But when the language was short, to the point, and precise...

Posted by: Curmudgeon at May 26, 2009 01:40 PM (ujg0T)

19 I can dig this decision. I'm a Mormon and we had a similar fate with regards to plural marriage. We had to give up the practice in 1890 as a precondition for Utah to join the Union but existing plural marriages were not dissolved.

Good call California.

Posted by: navy2af at May 26, 2009 01:41 PM (6I6Yx)

20 "if it were true that they were activist black-robed tyrants when they ruled against us then it is equally true that they are activist black-robed tyrants when they rule for us."
I have to wholeheartedly disagree with that statement. If the courts "uphold" the fact that citizens in the United States are allowed to have their will carried out does not make them judicial tyrants. There are people that go overboard I have seen imply that judicial tyranny means alot of things, but noone can mount a serious argument that you could not use those words if the Judicial branch of our Republic started overturning Constitutional amendmants and ballot initiatives freely voted on by the American people.

Posted by: Mr. Pink at May 26, 2009 01:41 PM (NM1Nu)

21 But along with that can't the judges just go and rule a law unconstitutional when the legislature tries to be more specific.

"Specificity" isn't a quality which renders a law unconstitutional. It's only a problem when the legislature is trying to skirt the Constitution. They shouldn't be doing that anyway.
I think the judiciary has led to the legislature being vague in an
attempt to keep the laws there so they aren't thrown away as
unconstitutional at the first opportunity.

Possibly, but I am skeptical. I think it has more to do with electoral politics - e.g. politicians pass vague laws that are about "saving the environment", so they get to run campaigns that claim they are "pro-environment", when all they've really done is leave the fate of the environmental laws up to judges.

Posted by: chemjeff at May 26, 2009 01:42 PM (kw6LA)

22

The AP article summarizes the ruling as apologies and
excuses from the judges.



"limited to interpreting and applying the principles and rules embodied in
the California Constitution, setting aside our own personal beliefs and
values."



In a sense, petitioners' and the attorney general's complaint is that it is
just too easy to amend the California Constitution through the initiative
process. But it is not a proper function of this court to curtail that process;
we are constitutionally bound to uphold it,"



Something tells me if there was a loophole they would have used it without any
remorse or appeal for leniency from the prop 8 supporters like the statements
above. Why are they compelled to disqualify their own ruling with a statement about
their personal beliefs? Don't tell me they are not activists. In this case they
are just activists with their hands tied.

Posted by: robtron12 at May 26, 2009 01:42 PM (gue+Q)

23 Well, shit. There goes a whole damn warehouse full of Judy Garland ice sculptures.

Posted by: Entrepreneur. at May 26, 2009 01:42 PM (gQLr2)

24 Posted by: chemjeff at May 26, 2009 01:33 PM (kw6LA)

Poor legislative construction may in fact be an issue but it's a correctable one. The danger from the courts is when they are issuing decisions based on constitutional grounds. There is no appeal from the US Supreme Court.

As long as judges think 'equal protection' is nothing more than an invitation to impose their will on a whim, then judges will indeed be a danger to freedom.

Gabe's defense of the Cali Supreme Court rings a little hollow considering that they were the ones who created the mess in the first place by inventing a right to same sex marriage (which they claim still exists).

I for one don't have much faith in a republican form of government when we are simply relieved that a state supreme court has kind of sort of decided not to wholly ignore the right of the citizens to write and interpret their own constitution.

Posted by: DrewM. at May 26, 2009 01:43 PM (PLGGU)

25 also, Prop 187 which would have saved California from the budget crisis got thrown out...

Posted by: MikeH at May 26, 2009 01:44 PM (LdYLm)

26 No, Gabe is correct. Judges make law, or make rulings based upon such law, all the time--it's called the common law. What they are not supposed to do is directly contradict an existing statute, or expressly leave it the legislature to clarify an issue. True, sometimes statutes are vague, so they apply canons of statutory construction, but they rarely make it up out of whole cloth, and even then usually expect (I'm looking at you 9th Circuit) to be overruled.
The judicial system is only "broken" in the same way we could say the legislative or financial system is broken. It's not perfect but neither is any other system, so stop indicting the whole system based on very few rulings with which you disagree.
You are wrong, Gabe isright.

Posted by: LexisTexas at May 26, 2009 01:44 PM (Vt8uv)

27 I do not believe judicial activism is an either/or affair. I look at our judges much the same way I look at our congress cretins.
The whole "legal gay marriage" thing arose not from a new law that was passed, but new and improved interpretation by the executive branch. It took not one, but two laws to be passed by popular consensus to explicitly shoot down the new and improved interpretation, because the courts decided the first law wasn't really all that. But the issue is by no means settled. Much like illegal alien amnesty, it will rise from the crypt again and again until the public gets punchy enough to stop fighting it.
Now, if gay marriage legalization were going through legislative channels, that'd be part of the political process. That it keeps finding its way out through the courts and executive branches indicates inappropriate activism. The fact that the public was able to ram down the status quo on their political betters <snicker> does not show a lack of activism. It shows that round 147 for the issue will be along shortly, most likely becausesome court or bureaucrat decides it doesn't like existing law, but can't be bothered to go through congress to change it.

Posted by: Cautiously Pessimistic at May 26, 2009 01:49 PM (ltwze)

28 I skimmed your post, Gabe, and while I can't claim I got every morsel out of it, I don't think I can concur with it altogether. The sentiments are right in general, but I think we would disagree on which underlying facts are salient, e.g., whether the CA SC was wrong initially and why. I tend to see constitutions as contracts with the people they govern. (I admittedly am not aware of much scholarly support for my position, which is a project I toy with from time to time.) As a general rule, contractual language is interpreted according to the meaning attributed at the time of the contract. To update the meaning of a particular clause of the contract, there has to be some sort of formal modification between the parties. I am no CA constitutional scholar and I did not study the decision that gave rise to the Prop 8 initiative, but I am not aware that anyone established that same-sex marriage was contemplated under the equal protection clause of the CA constitution at the time it was written or that any modifications had been made to include that particular issue. Thus, from a position such as mine, any decision expanding the meaning of the equal protection clause beyond what was contemplated when it was adopted would be an example of judicial activism. I do realize, though, that constitutional construction is not coincident with contractual construction, although they may share some similar attributes. I am fonder of the more predictable and conservative results afforded by a contractual-type construction scheme, though.

Posted by: MSM at May 26, 2009 01:51 PM (hnq5i)

29 And the reason this attitude pisses me off so much is because it undermines our system of government and our system of justice

No, that attitude doesn't undermine anything. Changing around priority of claims in a bankruptcy based on the quantity and largess of the parties' political donations does, however. Any body with half a brain should be scared shitless of the collapsing rule of law right now.

Posted by: Herr Morgenholz at May 26, 2009 01:52 PM (5aa4z)

30 Yeah, don't really get where you are going here Gabe. You skating pretty close to simply describing any ruling as "activism" with this post. I do think the courts generally work. The problem is not that they are generally bad but that there is an outright passion for becoming activist on hot button issues, the few there are.

Part of that is some inherent ambiguity in the English language. Hence
the mixed decision we got today, upholding the Prop 8 AND the already
existing marriages.
This seems to be the root of most of the problems here and of course it's lawyers who have a passion for making this point. There isn't really an "inherent ambiguity" in the English language to virtually everyone except lawyers.. No one ever had a doubt about what the meaning of the word marriage was. Any more than they did "to bear arms". This ambiguity is lawyer speak for I have clients and I need an angle. Activist judges are those who have forgotten they gave up playing the game to referee.

These judges today gave in to a point and decided to referee but couldn't help getting into it with the interim "marriages". The ammendment was clear in and of itself. The state can not refer to any union other than a man and a woman as marriage. What difference does it make when these unions were registered to what the state refers to them as?

Posted by: Rocks at May 26, 2009 01:54 PM (Q1lie)

31 *Me Standing with gasoline and matches in hand

"So......we........ aren't burning this thing down? Jeez people make up you mind"


I agree to a point gabe, but then how can you explain how judges can make different decisions on the SAME decision. How is something legal, lets take the right to carry a gun in DC or some other city, today by a 5-4 margin, but it will likely not be legal in the future if the court changes its make up?
Did the rules change? did the constitution change? no, just the make up and opinion of the court.

Let's take Plessy Versus Ferguson. One court decided he was property, another court later overturned that ruling. Which one was abiding by the law as it was written and which was the "activist court"?


I am not a lawyer, so i may not be familiar with the technicalities, but I feel as though the interpreatation of our laws vary from judge to judge

Posted by: Ben at May 26, 2009 01:54 PM (wuv1c)

32 Whoops - sockpuppet OFF!

Also, the Chrysler creditors had their hearing in District Court today objecting to tomorrow's sale to Fiat. It looks like the hearing's over, and it looks like the gov't/Chrysler prevailed, although I'm making this observation based on a NYT financial journalist's Twitter account. Still waiting on copy.... Anyone else see anything yet?

Posted by: Jazz at May 26, 2009 01:54 PM (hnq5i)

33 The reason I do not agree that saying this is "judicial tyranny" is an over the top statement wherein hypocricy will be shown now that people applaud the decision is that ballot initiatives that people vote on are their expressed will. If a sitting judge could just look at a ballot initiative that was voted on with a clear majority and just say "Well fuck that I didn't vote that way." and his word would become law, then we would have a serious problem. That would be like voting on a political candidate and then having a judge overturn the election. Or having a ballot initiative on raising taxes for aschool or somethingvoted down but then having a judge rule that it was "cruel" or some bullshit and ordering the legislature to raise taxes anyway.

Posted by: Mr. Pink at May 26, 2009 01:55 PM (NM1Nu)

34 nice job. You sure nailed that one while simultaneously undermining the rule of law.
Yeah. Cuz we all know judges don't make law. Especially in California. (And trying to pretend you're in the centre won't work with us, Gabe.)

Posted by: andycanuck at May 26, 2009 01:56 PM (MB+jN)

35 You sure nailed that one while simultaneously undermining the rule of law.

Really Gabe? Writing predictive comments about the outcome of a pending case, while attacking past behavior of courts undermines the rule of law?

I did not know that.

Personally, I thought judges making shit up and calling it a constitutional right in the face of the will of the people was what undermined the rule of law.

Thanks for clearing that up for me.

Posted by: DrewM. at May 26, 2009 01:56 PM (PLGGU)

36 [And yes, that was a pageformatting joke.]

Posted by: andycanuck at May 26, 2009 01:56 PM (MB+jN)

37 >>>"the courts are arbitrary, results-oriented tyrannies and we should burn the whole place down."<<<

Works for me...

Posted by: DDT Saves Lives at May 26, 2009 01:57 PM (mT2TF)

38 Posted by: polynikes at May 26, 2009 01:42 PM (m2CN7)
Posted by: DrewM. at May 26, 2009 01:43 PM (PLGGU)


Well, there are a few different issues.
1. Judges just making shit up. That's just wrong. Drew you are absolutely right about the 'equal protection' clause.
2. Judges injecting their opinions into decisions because the law is vague. That's wrong, but it's the fault of both the judiciary and the legislature (and the executive for tolerating vague laws).
3. Judges trying to rewrite laws that are otherwise clear. That's just really wrong. That's the job of the legislature.
4. Judges nullifying laws which violate the clear meaning of the Constitution. That's good.
5. Judges nullifying laws which violate their personal interpretation of a living Constitution. That's bad.

The problem is that when you have Option 2 out there, lots of vague laws requiring judicial interpretation, you create a system that relies upon the opinions of judges being an important consideration. IMO that is why we are where we are with Judge Empathy Sotomayor - the only reason empathy is being considered as a qualification is because we've relied on judges using their opinions to interpret vague laws. And if you are going to want judges both for their intellect and for their personal opinions - well why wouldn't you want one that has empathy?

I don't know if I've made myself clear, hopefully you can see my point.

Posted by: chemjeff at May 26, 2009 01:58 PM (kw6LA)

39 Oh, bullshit Gabe. How old were you in 2000?

After what Florida's "court" did, we can never trust a lefty in robes to read the law again. Yes, legitimacy is toast. It's done.

Posted by: someone at May 26, 2009 01:59 PM (1wXl7)

40 Ditto, DrewM.

I understand, too, though, that Gabe may be invested in this issue and may be speaking more out of frustration than objectivity.

Posted by: Jazz at May 26, 2009 02:00 PM (hnq5i)

41 "One more thing, just to be a grouchy sonuvagun. To all the silly folks who wrote about lawless and oblivious judicial tyrants and the inevitable Gay Agenda of the California Supreme Court: nice job. You sure nailed that one while simultaneously undermining the rule of law."


i'm a little dense, so are you tell me that we undermined the rule of law? i am lost.


the people who voted prop 8 undermined the law? i'm sorry i don't understand, but as i am sure you know there are inherent ambiguities in the English language.

Posted by: Ben at May 26, 2009 02:00 PM (wuv1c)

42 Most of the laws that everyone are calling "vague" that the courts are "interpreting" are anything but.

Posted by: Vic at May 26, 2009 02:03 PM (BYokb)

43 1 vote for 'burn it all down' here.

Posted by: John Galt at May 26, 2009 02:03 PM (SDkq3)

44 The fact that it was considered a distinct possibility that the CA court would override a constitutional amendment tells you all you need to know about the state of the courts.
When Prop 187 is reinstated, get back to me with this spiel about how wonderfully lawful our courts are.
And the reason this attitude pisses me off so much is because it undermines our system of government and our system of justice.
Bullshit. What undermines our government and system of justice are illegal activities on the part of the courts. That includes, since you seem to have forgotten, the illegal activity on the part of the court which spawned this constitutional amendment which the court has graciously deigned not to strike down.
The fact is that the court had zero authorithy to even rule on this issue, both back when they "legalised" gay marriage and now.

Posted by: flenser at May 26, 2009 02:04 PM (ocSOP)

45 if it were true that they were activist black-robed tyrants when
they ruled against us then it is equally true that they are activist
black-robed tyrants when they rule for us.

Uh....no. This is a restatement of the distortion that laws (and our Constitution) mean whatever a court says they mean.

With this statement, you've declared the rule of law meaningless, because "law" itself has no inherent meaning, only what "meaning" individuals and justices pour into it. It's simply a matter of getting enough of "our guys" on the bench.

Posted by: Larry Gwaltney at May 26, 2009 02:05 PM (PrO5+)

46 Gabe is setting up a strawman here.

To say, "Decisions of the courts are not "arbitrary." With very few exceptions,
judges and juries do their best to rule justly according to the law." misses the point.

It would be far more accurate to say, "Decisions of the courts are not always "arbitrary." Generally,
judges and juries do their best to rule justly according to the law, except when they feel that the point is "important" enough, and the risk of adverse consequence low enough." Responsible judges feel that very little is more important than the rule of law, and that one inevitable consequence of any such arbitrary decision is an erosion of that rule, and thus have the intestinal fortitude to rule cases on their merits instead of attempting to set policy or redress societal wrongs. Irresponsible justices, like the one being nominated for SCOTUS, or that band of idiots in Sacramento, see themselves as champions of the oppressed and fighters for righteousness -- the law be damned. And when responsibility doesn't hold a judge to the right path, consequence is our only backstop.


Posted by: cthulhu at May 26, 2009 02:07 PM (m5ie4)

47 i would like to state for the record that i don't give a crap about gay marriage. However the ONLY gay marriage I would accept would be the kind that was passed by the state houses, senates, and signed by the government. If states through the LEGISLATIVE branch wish to make Gay Marriage legal, then so be it. But I do think it is judicial activism when a court "FINDS" gay marriage to be legal or a right. I don't see how that isn't judicial activism. I thought laws were to be written by the legistlature, and then deemed constitutional or legal by the courts. I didn't realize that I was being a partisan hack when i root for Judges to make decisions based on the law as it is written by the legistlature and constitution and not on laws they themselves create. Then again i may be retarded.

While i like differing points of view, and welcome them while the republican party is reorganizing, this reeks of Littlegreenfootball-esque condecension. This is the "you're fucking idiots if you don't agree with me" type of post that isn't meant to further discussion, but instead a screed to let off your disappointment or frustration.

Posted by: Ben at May 26, 2009 02:08 PM (wuv1c)

48 So make your choice: either the courts generally work and we should
stay the course or the courts are arbitrary, results-oriented tyrannies
and we should burn the whole place down. But you can't do both. Make
your choice.

We need not choose between a chaotic and unforgiving judicial tyranny and burning the place down. That is a false choice that will not
serve our people or any people.

Posted by: Barack Obama at May 26, 2009 02:10 PM (9H4sW)

49 After what Florida's "court" did, we can never trust a lefty in robes
to read the law again. Yes, legitimacy is toast. It's done.

Are you kidding? Florida? Buncha pikers. What they did was nothin' - they couldn't even make it stick! You shoulda seen the crap we pulled when Toricelli was actually gonna lose to a Republican in NJ. And we actually did it by saying that explicit deadlines enshrined in voter laws are really just a "guideline", and they shouldn't apply because voters need to have a real choice - which is the choice to never ever elect a Republican no matter what the circumstances are. Ah, good times! And best of all, we -own- Lautenberg now.

Posted by: NJ Supreme Court at May 26, 2009 02:10 PM (/y1J0)

50 Judges make law, or make rulings based upon such law, all the time--it's called the common law.
Judges in America are not supposed to go around making common law and elevating that law over the oneenacted by the legislature. We don't live in 17th century Britian. At least, we supposedly don't. Our ruling class has others ideas.

Posted by: flenser at May 26, 2009 02:11 PM (ocSOP)

51 Know how i know you're gay?

You can't get married in California.

Posted by: CliveStaples at May 26, 2009 02:13 PM (8UD7P)

52 either the courts generally work and we should stay the course or the courts are arbitrary, results-oriented tyrannies and we should burn the whole place down. But you can't do both.
Burn 'em. They currently serve neither the law nor the best interests of the American people. Not if they can help it anyway.

Posted by: flenser at May 26, 2009 02:14 PM (ocSOP)

53 There is no appeal from the US Supreme Court. Posted by: DrewM. at May 26, 2009 01:43 PM (PLGGU)
Actually, the appeal would be to the legislature to rewrite/rescind whatever law it was the court ruled on.
The problem is since the mid-30's liberals have relied on the courts to approve or promote their social agenda while forgetting that most people don't get abortions or need a gay marriage certificate. The bulk of the Supreme's work over the years has been criminal, commercial or business law.
Liberals became so slavishly dependent upon the courts they forgot it is the responsibility of the legislature to occasionally spank the judiciary . Members of Congress who stand up after a particularly bad SC decision and say there is nothing they can do are full of crap.
Rewrite the law, clean up ambiguous language or simply tell the judiciary to butt the hell out. Before I get mad at any judge because he or she is aggressive, I'll scream at my representatives since they are the final arbiters of what the Constitution means - and how far judges can go.
We don't need better judges - we needcongressmen and senators who have some balls.

Posted by: Murph at May 26, 2009 02:16 PM (Mk493)

54 I think you present a false dilemma: Either a judge is a judicial activist, and therefore all of his or her decisions are activist, or a judge is not activist, and none of his or her decisions are activist.

I think it is eminently possible that a judicial activist could rule impartially and objectively according to the law on some cases, but subjectively and according to his or her own personal beliefs on others.

What makes a decision activist is the reasoning employed, not some ephemeral, intangible quality of the judge.

Posted by: CliveStaples at May 26, 2009 02:17 PM (8UD7P)

55 Know how i know you're gay?You can't get married in California.

Of course they can. No one's saying that a gay man can't marry a willing woman, or vice versa. And some very well might, if they hold the entirely sane position that having children and raising them by both biological parents is more important to them than the quality of their orgasms.

Cause that's really what it's about. The need of some to feel the approval that comes from knowing their orgasms are state-sanctioned.

Actually, it's not about that either. It's about taking away every last single non-sexual freedom away from a population on the pretext that consequence-free and state-sanctioned sex is the only freedom that matters. Alas, Aldous, even you didn't know how ridiculous they would get.

Qwinn

Posted by: Qwinn at May 26, 2009 02:19 PM (/y1J0)

56 Nothing has changed except now we like the ruling.
Right on, Gabe! There is no objective reality, only different class interests struggling for supremacy, just as Marx said!
You can takeGabe out of the left but you can't take the left out of Gabe.

Posted by: flenser at May 26, 2009 02:20 PM (ocSOP)

57 also could someone, smarter than myself, tell me the difference between marriage and civil unions in the eyes of the law??

My understanding is that they are essentially the same thing, but the other one has a religious component. If you are allowed to have all the rights of a married couple, but it isn't called marriage, is that really a big deal? The goal of changing the definition of marriage reeks of political correct revisionism. It's like changing the phrase "mankind" to "personkind". it means the same thing, but it need to be changed to make someone FEEL better about themselves. I don't think our laws should exist to make us FEEL better. If two guys(or preferably) two girls want to live together with the same benefits of a married couple, that is fine, but why can't the word "marriage" retain its religious based definition of one man and one women? Its like describing a man as black and another as white, they are both men, but in certain contexts they can't be described using differnet words, but they are still men. It doesn't make either of them lesser, or a sub human, or make one superior to another.

Posted by: Ben at May 26, 2009 02:20 PM (wuv1c)

58 Actually, the appeal would be to the legislature to rewrite/rescind whatever law it was the court ruled on.
Posted by: Murph at May 26, 2009 02:16 PM (Mk493)


Not when they overturn a law on constitutional grounds which is what I was referring to.

You can say that amending the Constitution is a sort of appeal but not really. First, it's not judicial and second it essentially never happens.

Also, constitutions aren't meant to be that specific. Would you amend the constitution every time they issue a Commerce Clause ruling? That's simply not workable or wise. That's why judges who understand the concept of judicial modesty are so important and sadly so rare.

Posted by: DrewM. at May 26, 2009 02:22 PM (PLGGU)

59 All three branches of government have clearly exceeded their constitutional limits, at all levels of government. That is a simple fact. Our government as designed was a work of art, perhaps even inspired by God. Our government as it is now, nearly junk.
Go ahead, argue the minutiae, grasp as the ragged threads of whats left of the fabric that made us. Doesn't change anything.

Posted by: OneEyedJack at May 26, 2009 02:25 PM (Poe30)

60 It seems to me that the government, in order to be evenhanded, has to explain why two men may marry each other, but not three men (or one woman and two men, or five people, etc.).
Leaving aside the answer to your question for another time, I can't help but be amazed byhow far leftist thought has penetrated into the culture andhow even people on "the right" by into it. It is not the role of the federal government to be "evenhanded". It exists in order to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity".
Sometimes this may require being evenhanded, frequently it will requirebeing unevenhanded. Pretending that dissimilar things are alike is not justice.

Posted by: flenser at May 26, 2009 02:29 PM (ocSOP)

61 The problem with marriage from a governmental perspective is that marriage is a cultural, religious, and social custom -- and our customs derived from our predominately northern-European forbears.

All our laws reflect cultural, religious, and social custom. This quant notion of "free speech" is an example of that northern-European custom. So is the notion of private property. If we scrap all laws which have a basis in northern-European custom then we'll be left with anarchism.

Posted by: flenser at May 26, 2009 02:37 PM (ocSOP)

62 It is not the role of the federal government to be "evenhanded".

Flenser I thought you were on your way to a good post there but you fell short. Most specifically; narrow this down to the courts which is what we are talking about here. The legislative branch itself should be pretty much even handed.

The courts ONLY purpose is to make sure that the laws are followed and that those same laws are within the bounds provided by the State and Federal Constitution (dependent on the level of appellate court). It is NOT the purpose of the court to determine whether or not a law is good or fair.

If the congress passes a law that states from this day forward, all male children will be named Bob and if there is nothing in the Constitution that prevents them from doing this, then the court can not say the law is void simply because it is silly.

And yet, contrary to the text of this thread, we have 5 judges on SCOTUS who regularly do this based on the outcome that they desire to happen. They do this even to the point of reversing long term precedent as in the BS GITMO ruling.

So guess based on the binary choice we had above, we should burn the place down.

Posted by: James T. Kirk at May 26, 2009 02:39 PM (BYokb)

63 Whooops, fix that sock puppet

Posted by: Vic at May 26, 2009 02:41 PM (BYokb)

64 The legislative branch itself should be pretty much even handed.
That depends on your particular conception of evenhandedness. Should women be forced to register for the draft, and be drafted in times of war? That would be evenhanded. It would also be dumb and not in accordance with either the spirit or text of the Constitution, which the legislative branchis supposed to follow.

Posted by: flenser at May 26, 2009 02:45 PM (ocSOP)

65 When Bret Hull scored the tournament-winning goal against the Sabres, Buffalo fans said the goal shouldn't have counted. They still claim this. When the Titans pulled off the Music City Miracle against the Bills, Buffalo fans (again) said the return guy made an illegal forward pass. They still claim this, too.
Gore supporters in 2000 saw their guy lose a nailbiter and (for them) a heartbreaker, but the loss has since been described as everything except a loss. Anti-war people saw war in Iraq, whichthey say resulted from all sorts of causes but not from their failure to express their case convincingly. And a guy I know left his car parked for five hours in a two-hour lot. He got a ticket because, he said,some rent-a-cop meter maid went on a power trip.
So your kvetch is neither new nor exclusive to the topic of courts, Garbiel. I don't know how much of this is a cathartic venting of frustrations and how much is denying reality. Nor do I know how unhealthy this all is -- but over time, it can't be good. So I guess yeah, what you said.

Posted by: FireHorse at May 26, 2009 02:49 PM (jMk+v)

66 burn-it.

Posted by: Terry at May 26, 2009 02:50 PM (+7Usq)

67 One more thing, just to be a grouchy sonuvagun. To all the silly folks who wrote about lawless and oblivious judicial tyrants and the inevitable Gay Agenda of the California Supreme Court: nice job. You sure nailed that one while simultaneously undermining the rule of law.
Why are you trying to undermine the 1st amendment of the U.S. Constitution?
Oh, kudos on correctly predicting the outcome of this decision. Fuck off and suck the barbed cock of Satan for acting like a general whiney douche in this post, questioning all the "silly people" who commented on this post.

Posted by: Ed: Vivid Video talent scout and towel boy at May 26, 2009 03:11 PM (VplQ7)

68 why can't the word "marriage" retain its
religious based definition of one man and one women?

Posted by: Ben at May 26, 2009 02:20 PM (wuv1c)

I generally agree with you but I do need to take exception to the idea that the defintion of marriage as a man and a woman as being religious. This defintion is the same across all cultures, religions, and time.

Posted by: Rocks at May 26, 2009 03:14 PM (Q1lie)

69 the inevitable Gay Agenda of the California Supreme Court

Well, let's put it this way: color me surprised.

Posted by: I R A Darth Aggie at May 26, 2009 03:14 PM (1hM1d)

70 I did say pretty much; there are no absolutes but if I had to make a call on the draft if reinstated, I would draft BOTH sexes.

Posted by: Vic at May 26, 2009 03:35 PM (BYokb)

71 I don't remember anyone claiming in the previous threads that the laws and the constitution were meaningless, so I don't know who you were referencing by that. I do know that a constitution can't solve every problem. Constitutions are best for outlining a decision-making process, and not so good at making decisions. Of course, according to you, judicial activism is just a figment of a deranged conservative imagination. It's just too bad that most of the founders disagreed with you. Might I recommend the Federalist Papers and the Anti-Federalist Papers?

Posted by: JohnJ at May 26, 2009 03:39 PM (VhXyJ)

72 I'm confused... Is this the same Gabriel Malor who posted the darkly amusing tidbit about how Justice Alito zinged the liberal wing of the SCOTUS for hypocrisy? Which hypocrisy perfectly illustrates one of the methods employed by the "judicial activists", namely the arbitrary selection of among many judicially created decision rules that will enable the decider to reach the pre-determined outcome.

You can say that courts have "always been hostile to retroactive alteration of vested rights", but this is again just another case of a judicially created decision rule arbitrarily selected to reach a preferred outcome. There is simply no way an honest reading of the text of the amendment could give the impression that the most reasonable interpretation of the voters' will was to sustain the validity of the extant same sex marriages. "Only marriage between a man and a woman IS valid or recognized in California." Not 'only marriage between a man and a woman WILL BE or SHALL BE valid'. The only natural reading of the operation of the verb "is" would be to invalidate all non-conforming unions, past, present and future.

Posted by: cnh at May 26, 2009 03:41 PM (kGjAm)

73 FTA: ''...there's a reason we have courts and laws and constitutions.''

Yea, it's called Democrats!

Posted by: TennDon at May 26, 2009 03:43 PM (o6Yv2)

74 Let's wait and see whatsystem finally does with the Indiana/Chrysler suit. The Bankruptcy Court completely ignored this administration's consitutional violations and ordered full steam ahead. Thankfully, a higher court has been addressed. In my view, not all judges are equal, which can be the problem.
In the meantime, a quote from author Terry Goodkind:
"If you are unwilling to defend your right to your own lives, then you are merely like mice trying to argue with owls. You think their ways are wrong. They think you are dinner."

Posted by: Observer at May 26, 2009 03:54 PM (u0GlI)

75 Look, there's a reason we have courts and laws and constitutions. Decisions of the courts are not "arbitrary." With very few exceptions, judges and juries do their best to rule justly according to the law. But the judiciary is a lot like a computer. You put good laws in, you get good rulings out. You put shit in and the whole place turns into a sewer. (E.g., the endless environmental litigation).
Computers lack character, as due many jurists. Metaphoric fail.
More importantly: if it were true that they were activist black-robed tyrants when they ruled against us then it is equally true that they are activist black-robed tyrants when they rule for us.
As in your metaphor, you have left out the human elliment. Judges may well follow the law to the letter and still balk when their own ox is gored.
To argue that since the justices got one right they will always do so is silly. If all jurists were consistant, computer-like in their ablitities to sort out the law and honest, there would be no need of appeals.
Between your proposed options of revolution and submission lies a third approach; walking back the power of the judiciary.

Posted by: kidney at May 26, 2009 03:59 PM (vbr6o)

76 "You put good laws in, you get good rulings out. You put shit in and the whole place turns into a sewer. ...Part of that is some inherent ambiguity in the English language. Hence the mixed decision we got today.."
Bullshit. If it was "ambiguous", then half of the decisions would go to conservatives and half to liberals. Instead, they always go in one direction. You can put all the good laws laws you want in but liberal judges don't feel bound by them. They only affirmed today because they didn't want the civil unrest. It wasn't principle.

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Posted by: AB Catson at May 26, 2009 04:41 PM (u0GlI)

79 if it were true that they were activist black-robed tyrants when they ruled against us then it is equally true that they are activist black-robed tyrants when they rule for us.

In theory this is true, but in practice, it never happens. Bush v. Gore, maybe, but I think that only a drooling imbecilic moron (i.e., David Souter) could conclude that rules of counting ballots can be changed ex post facto.

The Left has judicial activism as one of its planks. It's not some accident or overreach. It's part of their philosophy. They do not care about being constrained by the law.

I suppose you can find disputes on any decision, but if the Left had the same respect for the constraints of law that we do, then these bits of statistical noise would cancel each other out.

Combine this with the usual arrogance of the Left and the inexplicable arrogance of law school grads (got math?) and you get the Divine Right of Judges.

The Prop 8 ruling was probably reasonable, but the fact is that a Prop 8 was necessary was because of the courts. They caused the mess, the people tried to fix it and the judges said, "Well, you didn't dot all of the i's we think you should have dotted so we'll figure you mean what we want you to have meant."

Out of context, it was probably the right decision, but with the context that the courts forced this crisis and the Prop was set up for the express purpose of overturning a court decision, it feels like the judges are little more than children who realized they caused the chaos they wanted to and were willing to pay the price of sitting in the corner to giggle over their handiwork.

Posted by: AmishDude at May 26, 2009 04:50 PM (T0NGe)

80 Burn it down.

Posted by: carl at May 26, 2009 05:45 PM (EX+6L)

81 This post perfectly paints young Malor's naivete.
And this comment is probably representative of the majority in this thread.
That this is even a topic for discussion indicates there's a problem with the courts.
So what's the problem? If the courts are our umpires, then do they have different interpretations as to where the top of the strike zone is? Or are they ignorant about how to call balls and strikes? Maybe they just can't see very well. Or maybe they just get the calls wrong every now and then. Or are the games crooked with the umpires in on the fix?
Ideally, the courts reflect the will of society as they interpret current law; they are, after all, part of the government of the people and for the people. And our society is moving to the Left. So maybe there's really no problem at all.
Whatever. But if we torch the courts (metaphorically, of course) then none of what's left would matter -- elections, parliamentary procedure, fire codes, etc. We'd just be a big collection of clans and gangs.

Posted by: FireHorse at May 26, 2009 06:18 PM (jMk+v)

82 Part of that is some inherent ambiguity in the English language.


Only marriage between a man and a woman is valid or recognized in California.

One Hundred and Eighty Five pages discussing what the definition of "is" is.

Perhaps judicial activism needs to be redefined as using plain english.



Posted by: Druid at May 26, 2009 07:26 PM (nFeDb)

83 I respect the idealism of the author of the post that is so often attached to the relatively newly-minted attorney. I really do.

Somewhere along the line my idealism and my cynicism met, going in opposite directions, just outside of a courtroom door.

There is no doubt that most judges, at both the trial and appellate level, do the right thing, or at least try to. Likewise I think there is little credible doubt anymore that there is a toxic element in the courts that does set destructive policy as it wishes. The problem is that the least dangerous branch is so much less accountable than the other two, and that is the fault of us for not paying attention and spending enough time reading raw court opinions.

On the one hand the California Court today upheld the rule of law, not because of the outcome, but because of the way in which it reached the outcome, and on the other hand we have on the same day a new SCOTUS nominee who boldly proclaims that it is judges who set national/fiscal/liberty/religious/social/allthings policy.

I agree (with myself, if no one else has said it) that the term "judicial activism" has mostly outlived its usefulness, if the term ever was useful in the sense that everyone thought of the same things when reading or saying the words "judicial activism". I do, however, suggest that the new nominee is quite competent evidence that elevating policy preferences (whether popular or not) over bright line law is not only acceptable today, but is welcomed.

Posted by: ArrMatey at May 26, 2009 07:53 PM (Cb2Na)

84 Bla bla bla the system works bla bla judicial activism must not be used, feh. Lawyers are some of the least likable people on earth, and this is one huge exhibit why.

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If it didn't exist, we'd need about a tenth as many lawyers.

However, it's not even just English -- it's inherent in the universe that there be ambiguities.

Gdel's incompleteness theorems make it actually quite clear that you can't make a totally complete, enclosed reasoning system without exceptions or special cases.

The Law is no different. No matter how hard you try, no matter how perfectly you think you've tweaked The Law, there will be a need for additional attention -- a case outside the rules you've defined.

Posted by: Obloodyhell at May 28, 2009 12:11 PM (2UH3J)

87 > Bla bla bla the system works bla bla judicial activism must not be
used, feh. Lawyers are some of the least likable people on earth, and
this is one huge exhibit why.

Ah, an in-depth technical refutation.

LOL.

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