The View From 1776
Tuesday, June 17, 2008
Courts as Super-Legislatures
The California court ruling on same-sex marriage is the latest example of courts arrogating to themselves the power to override the executive and legislative branches, as well as majority public opinion expressed in state-wide referenda.
Read Stuart Taylor, Jr.‘s Gay Marriage by Judicial Decree in National Journal.
Mr. Taylor, an acknowledged liberal and supporter of same-sex marriage, is nonetheless alarmed by the readiness of courts at all levels to subvert the democratic process:
First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: “Our task ... is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.”
This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution.
The Democrat/Socialist Party is intent upon aiding Al Queda’s aim of destroying the United States by reducing society to a squalid mass of sensualists unwilling to defend the Constitution or our nation against foreign enemies.
Mr. Taylor observes that California’s sort of judicial activism portends vast changes at the national level:
Looking to the future of the U.S. Supreme Court, a sharp lurch to the right seems unlikely. Even if McCain wins the presidency and ends up replacing liberals John Paul Stevens and Ruth Bader Ginsburg—who at 88 and 75, respectively, are the oldest justices—an enhanced Democratic majority in the Senate would no doubt block any strong conservative nominees to replace them.
A Democratic president, on the other hand, would probably have a free hand to appoint the sort of justices envisioned by Obama, who opposed the nominations of Chief Justice John Roberts and Justice Samuel Alito. Obama has suggested that his criteria would not be fidelity to constitutional text or modesty in the use of judicial power, but rather “what is in the judge’s heart” and “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”