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I think people are getting sick of hearing my rant about Sotomayor, but my OCD compels me to continue. Senator John McCain (R – AZ) declared he would be voting against Sotomayor today. You may have heard of him, former Presidential candidate, former war hero and also former maverick. Also owns a house in La Jolla.

Reading his press statement one might easily be mislead into thinking that Judge Sotomayor has been a judicial activist in the past. He goes through a scholarly examination of her past record, highlighting that all the times her decisions have been overruled have been because she overstepped judicial authority. Has it occured to him that someone with as long a history as Sotomayor will indefinitely have decisions overturned? And that decisions are most likely to be overturned because of judicial overreach?

This falls into the shadowy realm of American judicial conservatism, a horrid beast which undermines our faith in the justice system. It defines judicial activism not as whether the proper legal reasoning and processes are followed, but whether or not the outcome is ‘conservative’. Judicial restraint should be about applying the law as it stands. It should be about amending it in appropriate circumstances, as dictated by a long history of common law reform. Judicial activism should not be about whether or not an appropriate outcome was reached. That is the province of Lord Denning and Roberts CJ.

So for instance, let us look at gay marriage. In some circumstances that can be considered activism, in others not. Some might argue that gay marriage is a “new right” being added to the law.  Just because a thing did not exist in the time of the Founding Fathers does not mean that it was not contemplated by the Founding Fathers that something unexpected would appear. Many rights have been added to the law over time, for example the right not to be enslaved. What matters is that they are added in the appropriate manner. The case of Varnum v Brien in the Iowa Supreme Court is an example of good law. It deals with an area that is relatively settled in America – equal protection. Equal protection is not a closed category, it expands with the times according to criteria which have long been established. The question about whether sexual orientation falls within that category is a simple application of law. Once the right to equal protection for sexuality is established, the question is whether gay marriage is a right worthy of such protection. It clearly is. Separate is not equal, as any African-American can tell you. It has been established law ever since Plessy was overruled.

California’s Supreme Court in In Re Marriage cases is not good law. Yes, as I said gay marriage falls under equal protection. But unlike Iowa which dealt with a case of statute law which is easy to overrule, the California SC was dealing with an ‘initiative statute’. This is a piece of idiocy unique to California, whose constitution was written by a mule with a spinning wheel. It gives the voters the ability, with a 50% majority vote to pass any law it wants. The Knight Initiative rewrote what it thought was a loophole in the law- that gay marriage from foreign jurisdictions might be recognised in California. (Gay marriage was still banned). It passed with a surprising 61% approval. For a court to overturn the direct will of the people in this manner is rather unthinkable. I am unaware of any precedent for it.

The common law has evolved over many years, with the collective wisdom of a thousand eminent judges. Often I’ve found that when we begin to tug at the edges of what the common law allows, we begin to find adverse consequences. In this case, California has been set back a hundred years in terms of equality for homosexuals due to the passing of Proposition 8, a constitutional amendment banning gay marriage with the same wording as the Knight Initiative. This will take a mountain of effort to overturn. Had the gay rights movement had a little patience and faith in the judicial system, they could simply have overturned the Knight resolution in a few years time. They had a governor and a legislature which were both pro-gay marriage. They were dealing with a population that was becoming more tolerant of homosexuals. Indeed, prop 8 passed with a much narrower 52% majority. Now they must deal with a constitutional amendment instead of a mere initiative statute. History shows that people are much less willing to overturn existing law.


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