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

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