What could they mean?
| August 16th, 2004On Saturday, August 14, The New York Times ran an editorial discussing the recent California Supreme Court ruling which voided the same sex marriages performed in San Francisco. Their editorial included these words:
Referring to their comment about activist judges, David Blankenhorn, of Family Scholars, asks, “What could the editors be thinking?” He answered his own question as follows:
Was this what the editors were thinking? It is often difficult to guess what a writer may have meant by a short, rather vague clause. I tend to guess they probably meant what I understood when I read their word.
What did I think when I read those word? I thought they meant to suggest:
Conservatives often label judges “activist” after rulings they dislike. In this ruling, we have clear evidence these California judges are not activists. Had these judges wished to legislate from the bench, they would have interpreted the law to validate Mayor Newsom’s actions. Surely, at a minimum, activist judges would not have voided the marriage licenses. Instead, these judges interpreted the law as it is written.
Could the editors have meant something else? Of course. Is it an accusation? I didn’t read it as such, but possibly, it is. Mostly, I think it’s a fairly vague clause. The editors of The New York Times could have said whatever they meant more clearly, then we’d know for sure.
As many know, the case to decide the constitutionality of restricting marriage to heterosexual couples is pending in California. We shall learn then how these apparently non-activist judges rule on that case. If they rule to extend marriage to same sex couples, based on their interpretation of the California constitution, will conservatives label them activist? Or will they realize that sometimes constitutions guarantee a right conservatives happen to dislike? We do not know.
August 16th, 2004 at 9:48 am
I’m playing dumb here a bit, but I want to know what is so wrong with an activist court. Shouldn’t a court do more than just read the law? Isn’t it a sign of health that a court can look at a new idea or issue, or see an old idea in a new way? Yeah it can be scary; and I’ve been openly opposed to ssm; still. I want a court to think, not just bang the gavel.
(btw, my blog has moved. If you want to update your files.)
This comment was written by Rachel Ann.Report this comment to the moderators
August 16th, 2004 at 10:51 am
>>Shouldn’t a court do more than just read the law? Isn’t it a sign of health that a court can look at a new idea or issue, or see an old idea in a new way?
Well.. the court does look at new issues, new circumstances, and knew information when applying the constitution to a question. Plus, some questions are new– simply because others have never asked them. That can lead to decisions that seem entirely new.
I don’t think the courts should be rewriting the constitution when making decisions. I don’t think they do. They do overturn laws enacted by the legislature if these laws, in their view, violate the constitution. In my view, they are supposed to do that.
This comment was written by lucia.Report this comment to the moderators
August 16th, 2004 at 10:59 am
FWIW, I think you’re being a bit too charitable. Your suggested reading makes a very good point that the editors should have made, and which they most likely would be happy to have made. However I doubt that’s what they originally meant. It reads to me like they just threw in a bit of snark about activist judges out of force of habit. I sympathize, because in general it’s perfectly true that conservatives use the phrase to poison the well against any decision they don’t like. Unfortunately it just doesn’t make sense to mention it here in the way they did, and David Blankenhorn was quite right to pounce.
This comment was written by Mark Barton.Report this comment to the moderators
August 16th, 2004 at 11:46 am
>>WIW, I think you’re being a bit too charitable.
Possibly.
That said, I am describing the idea the short phrase lodged in my mind when I read it. Because it is so short, and so vague, I suspect it formed a variety of ideas in everyone’s mind.
Major difference of opinoin with Blankenhorn is that we cannot be at all sure what they meant when they wrote that. One could guess based on what it made them think (as I did.) That method will result in zillions of interpretations. One could guessed based on their guess about the political leanings, and snark-potential of NYT editors.
I generally don’t read the NYT, so I can’t really guess their snark-rate based on my own experience. My morning paper is the Wall Street Journal and I regularly read the Chicago Tribune. The WSJ snark rate is pretty low– at least in my opinion. The Chicago Trib varies from editorial writer to editorial writer, but I wouldn’t say the snark rate is high. (Well, and I mostly read the actual news in the Trib. And the funnies of course. Oh.. and, although it’s embarrasing to admit, the advice columnists.)
If the NYT has a high snark rate, then, it was probably a snark!
This comment was written by lucia.Report this comment to the moderators
August 17th, 2004 at 10:35 pm
Blankenhorn’s feelings are so hurt by the (entirely accurate) accusation of bad faith that he makes the bizarre reply contained in his last sentence. According to his rebuttal, if you accuse SSM opponents of acting in bad faith, you deny the possibility that judicial activism exists.
Which is laughable. But I guess that’s better than Plan B, which is to admit that anti-SSM opponents are, in fact, arguing in bad faith.
This comment was written by mythago.Report this comment to the moderators
August 18th, 2004 at 5:01 am
Yes. An accusation of bad faith would not imply the impossibility of judicial activism. Accusing judges of activism and failing to credit clear evidence that the judges are not activist is sometimes thought to be a symptom of bad faith.
This comment was written by lucia.Report this comment to the moderators
August 19th, 2004 at 7:12 am
What ever happened to the will of the people? Do we not live in a democratic republic? Society should have the right by a majority vote, to determine which relationships it wishes to recognize and those it doesn’t. It’s not complicated. If the people vote on a law, or referendum, shouldn’t we, including judges, have to abide by the results?
This comment was written by Pietro Armando.Report this comment to the moderators
August 19th, 2004 at 7:40 am
We have a system where we enact constitutional provisions by super majority vote. These provisions are the will of the people.
Within this framework, we enact other provisions by simple majority. However, they are not permitted to violate the constitution. When disputes arise, judges interpret the law, and for that matter, contracts and any sort of legal claimsl.
As far as I can tell, when judges rule that a law enacted by the legislature violates the constitution, they are interpret the US constitution. That’s the way we set up our system.
This comment was written by lucia.Report this comment to the moderators