On Activism (Judicial and Mayoral)

National Review online today has an interesting column about judicial activism. The author acknowledges that judicial activism is not a one-way street and that conservative as well as liberal judges do it. He praises Alabama Attorney General Bill Pryor for going after state supreme court Roy Moore after his Ten Commandments stunt last year. Pryor placed the rule of law over his personal beliefs on the Constitutional issue to pursue sanctions against Moore. And kudos to him for it.

Where the author goes wrong, I think, is in equating "activism" with "coming to a result I disagree with." He cites, predictably, the recent Massachusetts Supreme Court decisions about gay marriage as examples of judicial activism. There is certainly an argument that the court got it wrong in that case, but it was hardly being "activist." Original intent - the touchstone of many conservative jurists - is a stagnant doctrine with little relevance to a modern world that includes the Internet, high-tech surveillance equipment, and multi-national corporations. Any law - Constitution, statute, or common law - needs room to breathe or it will wither and die.

For a very good example of activism, of the mayoral sort, is the current gay marriage phenomenon going on in San Francisco. The mayor found what is, arguably, a conflict between California statutory and constitutional law. Rather than go to court to get the conflict clarified, he came up with the current very public stunt. He showed very little respect for the rule of law and the process our system of government sets up for resolution of conflict. That's activism.