Our Imperial Judiciary

Several generations of lawyers now believe that the federal judiciary exists primarily as a bulwark against overbearing majorities.

It may be that it is not in the GOP's long term interests to stand against gay marriage.  Whether the federal court's decision striking down Prop. 8 is a positive development for the nation is another question.

To the right's rejection of "judicial activism," the left responds that 'an activist decision is one with which one disagrees'.  Even while this definition is intended to obfuscate rather than inform, it comes close to hitting the mark. Activist decisions are ones with which citizens disagree.  But more precisely, they are often decisions with which substantial numbers of citizens disagree.

It is the anti-populist character of judicial decisionmaking that gives the charge of activism political salience. And when the Constitution gives little clear guidance, as it does in almost all important cases involving gender, sexual orientation, religion and privacy, judges that impose the attitudes of political and social elites rightly earn the criticism of citizens.

Consider the decision in California. The judge determined that a majority of Californians had no sound reasons for maintaining traditional marriage laws. A vote to maintain a policy that has never been rejected by a democratic majority in this country, and that has been reaffirmed over 40 times in recent years by referenda, statutes, and amendments in red and blue America, is little more than irrational bigotry.

Several generations of lawyers have received the dubious instruction that the federal judiciary exists primarily as a bulwark against overbearing majorities.  The district judge in California certainly saw himself in this noble role. But he, and those who promote this vision of a progressive judiciary, never seem to consider that if Americans are that rotten to the core, hatefully discriminating against their fellow citizens on such a broad scale, this nation has problems that an independent judiciary cannot fix.

This exalted view of the judiciary likely inspires disdain for the opinions of average citizens. There are obvious non-discriminatory reasons for Californians to maintain traditional marriage laws. But when it comes to issues where the opinions of elites and ordinary citizens diverge, citizenly good sense is not enough. In these cases the judiciary demands a Harvard dissertation on the merits of traditional marriage, and unlike other public policies, evidence to the contrary demonstrates the fatal irrationality of the policy. Judges determine arbitrarily that abortion policies evolve from an animus toward women and the desire to limit marriage to certain unions stems from hostility toward gays.

The left does not get it quite right. An activist judge is not only responsible for decisions people don't like. The activism that moves Americans is an activism that, without much constitutional guidance, takes sides in a political dispute between political elites and political majorities, bestowing an unearned constitutional imprimatur on elite opinion.