Saturday, July 9, 2011

Judicial Activism: Something I Once Wrote in the Context of a Maine Court Holding Gay Marriage Legal

It is a misconception that judges interpreting equality under law to include gay marriage are being activist and anti democratic. Why is it activist to so read the ambit of equality under law? I would have thought that conventional equality reasoning is well equipped to include gay marriage. And I would turn that argument around: a judge who refused this reading of equality is being activist in distorting precedential analysis to conform to his or her own biases. Surely this is a kind of bad activism. Further, I do not understand activism as something equatable with deciding differently from what the majority might want in any particular case. What the majority or convention might want in any particular case might amount to the denial of protected rights and liberties and it would be no activism to hold against the majority. So holding would come square within the judging job description. And this too is correct: "... Those of us who favor an active role for courts hardly see them as the only, or the primary, way of pushing liberal goals. We simply argue that progress in a liberal democracy is a complicated enterprise involving multiple players and multiple branches of government..." Which is to say, courts, a third coequal branch of American government, have their role to play in construing and applying the law. There is nothing *overarchingly* anti democratic about that, even if judges are not elected. When judges err they are not being anti democratic as such; they are just being mistaken in any particular instance.

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