Return of the "activist judge" issue?

Posted at 4:41 PM on October 25, 2006 by Bob Collins (8 Comments)

The New Jersey Supreme Court issued its ruling today in the same-sex marriage case.

It gave lawmakers a few months to change NJ law to extend marriage rights or create a new civil union for same-sex couples.

This should be a big fat softball pitch for the Bachmann campaign, since the senator led the cry in Minnesota against "activist judges" when the Supreme Judicial Court of Massachusetts issued its ruling a few years ago.

Given how the issue was used by Republicans in the late stages of the 2004 campaign, this item in the news cycle could be just what the GOP ordered.

Local reaction

Bachmann vs. Wetterling: "While this may not be an October surprise for Republicans, it’s certainly an October eyebrow-raising."

Rambling from the North: "No- its not about the fact that we're going to win the NJ Senate Seat (which we are) but the New Jersey Supreme Court has ruled that, under the New Jersey Constitution, Homosexual couples have the same rights as heterosexual couples! WoOOOOOOooOOooOO!!! 2 states down, 28 to go!"

Perhaps the Foley story as a "player" in the 6th has been OBE.

Between this and the governor's new TV ad, it's starting to look like 2004 around here.

Comments (8)

Who are the pitchers pitching "big fat softballs"?

What the heck is an "activist judge"?

As long as your digging up old stories on Bachmann, can you comment on this one?:

http://news.minnesota.publicradio.org/features/2004/04/26_mccalluml_prt/

Posted by avidor | October 25, 2006 4:57 PM

The funny thing is that every GOP candidate in the country is going to take advantage of this ruling save the one it could most benefit -- Tom Kean, Jr.

Posted by Gary M. Miller | October 25, 2006 6:19 PM

This doublespeak is poisonous to our political conversation. The right-wing faction has redefined "judicial review" to "judicial activism" and implied that the judiciary is overstepping its bounds.

On the contrary, the judiciary is doing exactly what it is supposed to do: review laws and decide whether they are within the restrctions spelled out in the constitution (state and/or federal).

Sandra Day O'Connor has made some excellent speeches on this issue. We need to listen to her.

Posted by David Greene | October 25, 2006 6:31 PM

Federalist Papers 78-83 deal with the judiciary. #78 especially is a key one. Hamilton lays out the role of the judiciary and clearly believes it to be the weaker of the three branches.

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment;

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”

Also,

”Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

What happened in this case is the court told the legislature to go make the law it wants. That’s not what the founders imagined.

Marbury v. Madison set the precedent for the Supreme Court to declare acts of Congress unconstitutional, but it didn’t do so again until 1857.

Another key thought from Hamilton.

“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”

In other words, if judges were simply going to implement what they wanted, there wouldn’t be any point from separating the judiciary from the legislature, which is to make law.

What the court did today was exercise its will.

Posted by Jeff | October 25, 2006 8:44 PM

Yeah, we saw how well the Gay Scare issue worked in the Brainerd and Willmar DFL legislative primaries this fall. Maybe this is an opportunity to shine a light on Bachmann's repulsive obsession with marginalizing and discriminating against gays:

“It’s part of Satan I think to say that this is “gay.” It’s anything but gay.” — Senator Michele Bachmann, speaking at EdWatch National Education Conference, November 6, 2004.

“If you’re involved in the gay and lesbian lifestyle, it’s bondage. It is personal bondage, personal despair and personal enslavement.” — Senator Michele Bachmann, speaking at EdWatch National Education Conference, November 6, 2004.

On same-sex marriage: “… This is an earthquake issue. This will change our state forever. Because the immediate consequence, if gay marriage goes through, is that K-12 little children will be forced to learn that homosexuality is normal, natural and perhaps they should try it.” — Senator Michele Bachmann, appearing as guest on radio program “Prophetic Views Behind The News”, hosted by Jan Markell, KKMS 980-AM, March 20, 2004.

On homosexuality as a mental disorder: “Don’t misunderstand. I am not here bashing people who are homosexuals, who are lesbians, who are bisexual, who are transgender. We need to have profound compassion for people who are dealing with the very real issue of sexual dysfunction in their life and sexual identity disorders.” — Senator Michele Bachmann, speaking at EdWatch National Education Conference, November 6, 2004.

Interviewer: “Answer the question, do you hate homos?” MB: “No, but ask my kids! (laughter)” — Senator Michele Bachmann, Tom Barnard Morning Show, KQRS, broadcast May 12, 2005.

You probably get the picture by now, but if you need more, go here:

http://www.thebachmannrecord.com/thebachmannrecod.html

Now, before you talk about pitching Bachmann any "big fat softballs" on this issue, Bob, how about pitching her a fastball or two about any or all of the above quotes--which can be verified.

Posted by Karl | October 25, 2006 8:57 PM

Jeff of bachmannVwetterling says "What happened in this case is the court told the legislature to go make the law it wants. That’s not what the founders imagined."

What the courts did is exactly what the founders imagined. The courts said that the New Jersey Constitution guaranteed equality to everyone, including same sex couples. When the law tries to grant certain rights and privileges to opposite-sex couples, but not grant them to same-sex couples, they are violating the New Jersey Constitution. Because the legislature had written bad law, the courts instructed them to write good law. In other words, the system is working as designed.

"In other words, if judges were simply going to implement what they wanted, there wouldn’t be any point from separating the judiciary from the legislature, which is to make law.

"What the court did today was exercise its will."

No, that is entirely wrong. What the court did was tell the New Jersey legislature that they had written inconsistent law. The New Jersey Constitution is the highest law in that state, the legislature cannot write law that conflicts with their Constitution. What the courts found was that the legislature had done exactly that, and was thus instructed to go back to work and write a law that did not conflict with their Constitution.

How can you call such clarifications 'activism?' The system will not work if different legislative bodies are allowed to write conflicting law. Under your imagined set of rules, the New Jersey Constitution might decree equal rights, but the legislation writes a state law to deny certain groups rights, but the county commissioners could make an exception for their locality. Its a ludicrous position to take.

Posted by bsimon | October 26, 2006 9:34 AM

Here's what I find interesting: Bush and the N.J. court are on the same page. Here's what Bush told the NY Times during the 2004 campaign: "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so. I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others." (Hat tip to Andrew Sullivan: http://time.blogs.com/daily_dish/2006/10/bush_on_new_jer.html)

Posted by Hart Van Denburg | October 26, 2006 12:26 PM

Here is the heart of the ruling. “The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes.”

And here’s what that Article I, Paragraph 1 says:

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”

The page from the New Jersey Legislature where I found this says the Consitution is from 1947.

Do you think when that paragraph was written and agreed to in 1947 that the officials involved meant it to include gay marriage?

I highly doubt it.

So, how did these judges on the New Jersey Supreme Court “find” it there? You can read as well as I can. I contend they “found” it there because they wanted to.

If the people didn’t intend their constitution to include gay marriage, and the people haven’t had a chance to decide if they want it, having a court write the law is the very definition of judicial activism.

Posted by Jeff | October 26, 2006 9:11 PM

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