Mark at Publius Endures has written a series of posts (here, here, and here) that not only defend the California Supreme Court decision but the proper role of the judiciary in light of the sort of criticisms of "judicial activism" and "legislating from the bench" that are as predictable as they are dull and devoid of any real meaning. While I would call all of these posts "must reads", the second post, which explains in plain English what the judiciary does, should be mandatory reading for those before they put a foot in mouth with hopelessly weak arguments about the tyranny of the judiciary. Seriously.
Marc Moore ("MM") at Poligazette responds to Mark's assertions here. The third link above is Mark's response to Marc. It is a civil and interesting exchange. I have some comments and disagreements with Marc Moore's commentary.
I would have said that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation...
Assuming that we accept Mark’s assertion that the judiciary’s prime directive is to defend the legislatively defenseless there is still a question about how much leeway judges should have - or use, to put it a different way - to redefine societal norms.
MM is concerned about the judicial discretion afforded to judges based on Mark's view of the judiciary in the context of "redefining" societal norms, yet does not acknowledge the same problems in his own definition. I also wonder why his view of the role of the judiciary excludes state actions, but there is little need to press that issue for now.
By citing "increasing irrelevancy", as opposed to a strict enforcement of constitutional boundaries, he is placing in the hands of judges the discretion to determine what is relevant, what is not relevant and how it should be defined when applied to actual cases and controversies. Since we are already dealing with an irrelevant document, the argument goes, let us just do our best to enforce the outer boundaries and give judges the responsibility to enforce it. Depending on whether the fundamental value is respecting the doctrine of enumerated powers or deferring to democratic process in each specific case brings about a different set of inconsistent results. No wonder that the appointment of Supreme Court justices is such a political affair!!
To MM second point about judges redefining "societal norms", that is not the realm of judges per se and when they go beyond their vested powers to do so, as it can be argued they did with the busing case he cites, it is more than a little problemmatic. Fair point.
However, to quote KipEsquire, commenting in Mark's latest post:
"Federalism" -- like "democracy" -- is only noble to the extent that it respects individual rights. To the extent that it is invoked to infringe rights, it is evil -- and utterly subject to and deserving of negation by courts.
Setting aside the fact that "societal norms" becomes a "defined by who and by what standard?" problem that screams "Kip's Law" (the definition and numerous examples here), when "societal norms" are enforced into legal prohibitions restricting activities involving consenting individuals and violating the rights of no one, it is an arbitrary, irrational and illegitimate action on behalf of a democratic majority which saw fit to violate the rights of individuals under the rubric of "common good", "social order" or a "right to self govern". In these instances, it is absolutely the role of judges, when a case or controversy arises, to strike down these laws. If the question is individual liberty on one hand and striking down a "societal norm" that violates the rights of other individuals despite its status as a traditional practice, liberty should prevail. Always.
The Supreme Court, in overturning the same-sex sodomy law in Lawrence v Texas, did not recognize a "right to same-sex sodomy" as conservatives may have us believe, nor did it attempt to "redefine a social norm". Rather, the Court recognized, correctly, that there are clear limits on the ability of democratic majorities to put their personal preferences about how the rest of us should behave into law, especially when the law attempts to prohibit otherwise rightful conduct (rightful being not violating the rights of others). At times, reading conservative commentary on this case and others that provide a check on unbridled majoritarianism, I wonder whether conservatives confuse the concepts of "redefining social norms" and reminding the people that the "right to govern over others" has its limitations.
On the matter of judicial activism, MM believes that the California case is small potatoes by comparison in terms of "activism from the bench" but provides neither a defintion of activism (unless we look to his example of the busing case as guidance) or any support to the claim of rampant activism he believes exist.
In the context of a blawgosphere debate between Randy Barnett, Stephen Bainbridge and others approximately four years ago, Randy Barnett blogged on the subject of "judicial activism". The whole post is a fascinating read, but I will only cite this portion:
...what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:
-Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?
-Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?
-Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?
-Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?
-Surely Professor Bainbridge would not encourage conservatives to remain as uninformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernable meaning, and no constitutional purpose, despite what they apparently say?
-Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of "activism," we just do not know exactly why Professor Bainbridge is offended.
If MM wishes to elaborate on his theories of "judicial activism" and what he believes the proper role of the judiciary should be and defend the legitimacy of his theories (or his overall definition of legitimacy), he'll have to provide more detail. In Marc's defense, his focus seemed be on other points put forth by (the other) Mark regarding conservative disdain for the Constitution. I have little to say there, as the points Mark make are pretty much similar to my own.