Friday, May 16, 2008

“Activism? What Activism?”   [Ed Whelan]

Discussing the California marriage ruling on Slate, Dahlia Lithwick argues, inconsistently, both that “judicial activism” is “an empty label” and that there’s a “difference between judicial activism and judicial action.”  She’s right on the latter point and wrong on the former—and she’s particularly wrong not to recognize the California marriage ruling as a textbook case of judicial activism.

 

Let’s wade through some of her confusion:

 

1.  In presenting California as a “hotbed of activism” on gay marriage, Lithwick blurs the fundamental distinction between an “activist citizenry,” an “activist Legislature,” and an “activist governor,” on the one hand, and activist judges, on the other.  The concept of judicial activism is rooted in separation-of-powers principles and recognizes that the realm of judges is a limited one.  When citizens, legislators, and governors are acting within their own realms, the term “activism” ought to be “action”—it’s Lithwick herself who doesn’t recognize the proper distinction between “activism” and “action”—and is in any event properly not an epithet in those contexts.  Who thinks of “citizen activists” as pejorative (independent of the causes being advocated)?

 

2.  Lithwick seems amazed that some folks could criticize the California marriage decision before reading it.  It’s rather charming, I suppose, that after all the lawless rulings on same-sex marriage, one might be so naïve as to think that maybe, just maybe, there’s a right to same-sex marriage hidden somewhere in the penumbras and emanations of the California constitution, and that we just need our judicial lords to enlighten us.

 

3.  Lithwick contends, without any supporting argument, that chief justice George’s majority opinion offers “a rigorous close reading of state law and precedent.”  I see instead the judicial-activist approach that law professor Peter Edelman approvingly ascribed to his old boss, Justice Arthur Goldberg: 

His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. 

In any event, even if one indulged the counterfactual assumption that the court’s ruling flows from its precedents, a state supreme court justice is not bound to follow, much less extend, activist precedent.  When one understands the separation-of-powers objections to judicial activism, it is no defense to the charge of judicial activism to contend that the activism has been going on for decades.

05/16 08:10 AMShare