Countering the "judicial activism" argument

From Anonymous Liberal, a good argument about why a judicial decision that contradicts social norms, popular opinion, and even judicial precedent is not necessarily an instance of "legislating from the bench":

In 1948, in Perez v. Sharp, the California Supreme Court struck down California's anti-miscegenation law, ruling that it violated the equal protection clause of the Constitution.

...

Today no one questions the correctness of the Perez decision from a legal standpoint. And that's important to remember. It proves that just because a panel of judges is the first to recognize something, just because a judicial decision upsets prevailing societal norms, doesn't mean it's an example of improper activism or "legislating from the bench." The first judge to say something is just as right as the last one to say it. Sometimes the right answer, from a constitutional perspective, is pretty clear; it's just that no one has the courage to stand up and say it.

He then brings it home by explaining the proper role of the judge:

Judges have a role to play in our democracy besides merely confirming and enforcing the pronouncements of our legislatures. Sometimes they are called upon to give actual meaning to the words enshrined in our Constitution, even when legislators and their fellow judges have for decades (even centuries) chosen to ignore the logical implications of those words. Many of the biggest leaps forward we've had as a nation have been the result of judges who had the courage--in the face of contrary public opinion--to be the first to take the words of our constitution to their logical conclusion. I'm not saying judges never overreach. They sometimes do. But sometimes what seems like overreach is really anything but. This is one of those cases. The merits of these decisions will withstand the test of time.

Incidentally, I'm experimenting with doing something that I've seen done on some blogs, which is that they bold the key parts of a largish block of quoted text. The idea is that if you don't feel like reading the whole thing you can kind of skim the bold parts and basically get the gist. We'll see how it goes. (Also I notice it's physically easier to get through with some variation in the boldness of the text--which is maybe why comic books have that convention of arbitrary bolding..)

William Kristol's distortion

In his latest op-ed, William Kristol portrays the California Supreme Court's gay marriage decision as a case of an over-active judiciary overturning the will of the people:

On Thursday, the California Supreme Court did precisely what much of the American public doesn’t want judges doing: it made social policy from the bench. With a 4-to-3 majority, the judges chose not to defer to a ballot initiative approved by 61 percent of California voters eight years ago, which defined marriage as between a man and a woman.

What Kristol fails to mention is that, since that ballot initiative, the California legislature has enacted civil unions for gay couples, which include all of the legal benefits and responsibilities of marriage. The issue before the court was whether officially calling these arrangements "domestic partnerhsips" instead of "marriages" violated a provision against discrimination in the state Constitution of California. As it says plainly in the opinion:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

From what Kristol says, you get the impression that the decision substantively altered California's policy on gay marriage. In reality, though, the decision's impact was on semantics, not substance. So Kristol and other conservatives will continue to hold this up as an example of extreme judicial activism, when in fact there was very little of this so-called activism going on.