‘Marriage’ law hardly judicial activism

By Paul C. Campos

As the conservative movement collapses, its public relations wing sounds increasingly like an old man who uses the same pickup lines that worked a lot better 25 years ago.

A nice example is provided by the cries of outrage that greeted the California Supreme Court’s recent ruling regarding same-sex marriage. My fellow Rocky Mountain News columnist Mike Rosen accused the court of “a blatant act of judicial activism” and used the occasion to argue that, when it comes to judicial behavior, conservatives and liberals are divided by irreconcilable philosophical differences.

The claim that conservative judges stick to narrow “originalist” readings of legal language in general, and constitutional provisions in particular, while liberal judges engage in promiscuous outcome-oriented misreadings of these documents, is, at this late date in American legal history, rather implausible.

Plenty of conservatives have been more than happy to applaud aggressively creative judicial acts of constitutional interpretation, which overturned democratically enacted laws — as long as those acts produced policy outcomes they liked.

That was true in the first decades of the 20th century, when a conservative Supreme Court struck down various federal laws regulating relations between workers and their employers, on the ground that an ill-defined constitutional right to “liberty of contract” invalidated such laws.

It’s equally true in our own time. When claims are put forth that an inherently vague phrase such as “public use” prohibits legislatures from employing the power of eminent domain to transfer property from one private party to another, many conservatives treat this claim — which is highly contestable from an originalist perspective — as self-evidently correct.

Conservative double talk

Similarly, when conservative judges strike down democratically enacted affirmative action programs on the ground that racial preferences of any kind violate the Constitution’s equal protection clause — another argument that is difficult to defend on originalist terms — it’s almost invariably greeted by conservative commentators as an act of Solomonic wisdom rather than judicial tyranny.

(Seven years ago, the Supreme Court’s five most conservative justices invented a brand new reading of the 14th Amendment, thereby hijacking a supposedly sovereign state’s own election process and ensuring the Republican candidate would win the presidency.)

But beyond the cluelessness or hypocrisy of claims that liberals believe in judicial activism while conservatives don’t, a more basic problem bedevils the right’s siren songs about the tyranny of judges.

It’s intellectually plausible to argue that courts shouldn’t engage in constitutional judicial review at all. Indeed, respectable arguments can be made for that view.

What isn’t plausible is to argue that judges can engage in an objective, politically neutral exercise in which they determine how the original meaning of a centuries-old document applies to the political questions of today.

That’s like expecting the Bible to tell us what the capital gains tax rate should be. Yet this impossible exercise is what conservatives continue to present to us as the alternative to “judicial tyranny.”

X Paul Campos is a law professor at the University of Colorado.