Judicial Activism: Same Sex Marriage And The Aftermath Of Proposition 8
JUDICIAL ACTIVISM
Black's Law Dictionary defines judicial activism as a philosophy of judicial decision-making where judges allow their personal views about public policy to guide their decisions, and usually ignore prior case precedent. In the article titled “Judicial Activism by Conservatives,” Erwin Chemerinsky discusses the theory of judicial activism and applies it to the holding in the United States Supreme Court case, District of Columbia v. Heller. This case held that the Second Amendment right to “keep and bear arms” is an individual right granted to all of its citizens and is not just reserved for the militia. Chemerinsky believes that the majority did not follow precedent cases like Silveira v. Lockyer in making the decision, and instead had their own personal conservative political agenda of protecting individual gun owners. He claims that when there is an issue to decide that is at odds with conservative politics, justices become activists for their own beliefs and ignore political process and case precedent. Judicial activism, however, is also being used to blame the California Supreme Court for their liberal holding in the In Re Marriage Cases. In the In Re Marriage Cases, the California Supreme Court held that measures limiting marriage to opposite-sex couples violated the rights of same-sex couples and therefore same sex couples were allowed to get married in California. In the article “California Court’s Judicial Activism Threatens the Institution of Marriage” by Jennifer Marshall, Daniel Moloney and Matthew Spalding, the authors propose that it was the liberal California justices who inserted their political agenda in this case and changed the traditional definition of marriage. They argue that the judges abandoned case precedent, the California constitution and cultural norms and invented a new type of marriage that has not been researched or accepted. Therefore, it seems that judicial activism is being blamed for both conservative and liberal holdings in both state and U.S. Supreme Court cases. Judicial activism is problematic because it violates the separation of powers doctrine since judges seem to be “legislating from the bench.” But, judges are human and their preferences and opinions will likely seep into their decisions and the way they interpret the constitution. As a result, it seems that there will always be one side complaining that a case holding was the result of judicial activism and another side commending the decision as a reflection of the change in cultural and societal norms.
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