JUDICIAL ACTIVISM: David Barnes replies to Mike Pignatello

Mike's post seems to remove any possibility of the existence of judicial activism:

"The president even suggests resorting to the national 'constitutional process' in order to 'defend' marriage, presumably from gay people. It sounds like Bush is actually trying to create the situation under which a Constitutional amendment could be justified. We didn't do it, SSM opponents will say, it was the activist judges that made us do it. There is no recognition in the SOTU, of course, that the Massachusetts judges were interpreting the law according to their state constitution, as is their job. One can't help but wonder what lack of respect for the separation of powers is hiding in some of the SOTU comments."

This begs the question. Mike is claiming that when Bush was accusing activist judges of imposing their will instead of interpreting the law, Bush didn't acknowledge the fact that they were interpreting the law, when that is the very point that Bush is taking issue with. In other words: There are right and wrong interpretations of the law. The law does not mean whatever a bunch of judges decide it means. To reply to the charge that a court interpreted the law wrongly by saying, "But they were interpreting the law--that's their job!" misunderstands the criticism.
posted by Eve at 6:12 PM VOTE

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