A Simplistic Slogan

“Unthinking accusations of judicial activism are poisoning our legal culture, giving rise to the destructive and misleading perception that judging is nothing more than partisan politics by another name.”
— Judge David Tatel, U.S. Court of Appeals for the D.C. Circuit, August 2003.

According to critics, “activist” judges are judges who have the nutty idea that civil rights apply to all Americans, including gay, lesbian, bisexual and transgender Americans. Critics of so-called activist judges have developed a simplistic attack which they repeat over and over, using nearly the same words. What they don’t normally do is explain in any depth what they mean by “activist” — other than to suggest that any judge who recognizes a constitutional basis for equal marriage rights is “activist.” Nor do they discuss what is really involved in judging cases and enforcing the Constitution.

“To label the court’s role [in defining marriage] as usurping that of the Legislature is to misunderstand the nature and purpose of judicial review. … It is the traditional and settled role of courts to decide constitutional issues.”
—  Massachusetts Supreme Judicial Court, Goodridge v. Dept. of Public Health (2003).
We can infer from what critics do say that they believe decisions recognizing GLBT rights, especially equal marriage rights, are “activist” because they change the way things have been done in the past. In other words, it is “activist” and radical to recognize marriage equality now when it has not been recognized in the past. On this “logic,” the Brown v. Board of Education decision was “activist” because it dismantled a system of segregation that had existed for decades, even centuries.

“Absolutely, it is the job of the judiciary to enforce the Constitution.”
—  U.S. Supreme Court Justice Samuel Alito at his confirmation hearing, January 2006.