In the wake of the Iowa Supreme Court decision last week, combined with the subsequent Vermont legislative passage of same-sex marriage, there’s been a lot of talk, even amongst more conservative pro-same-sex marriage folks, about judicial activism and whether it’s the appropriate role of the courts to get involved in deciding social hot-button issues.

There has also, to be sure, been a fair amount of talk about whether same-sex marriage is an appropriate issue for application of equal protection doctrines, and there has even been some talk about the propriety of equal protection law in the first place. In reality, though, concerns about the propriety of equal protection law have very little legal underpinning and aren’t worth much discussion; meanwhile, it’s increasingly difficult to see how a court could find that equal protection law does not apply to same-sex marriage.

Far more interesting to me, though, is the question as to whether it is appropriate for the courts to get involved at all with hot-button social issues where they may end up overturning popular legislation. As someone who deals with the courts almost daily, I’ve long thought this question to be nothing more than a red herring – otherwise, what is the point of having an independent judiciary in the first place?

But one of my co-bloggers at the League of Ordinary Gentlemen, over the last several days, has helped me understand that there is sometimes more to that argument than meets the eye, although I continue to think that it is based on a misunderstanding of how our courts work. The result was a unique conversation that is memorialized here, and which helps clear up some misperceptions on both sides of the debate.

This section is, I think, particularly illuminating:

Will: As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Mark: The question I have, though, is how the courts can reasonably consider issues of political capital. They don’t get to decide when a plaintiff brings a case, and, as in Iowa, if a trial court rules for that plaintiff, then the higher court has no option – either they take the case and decide it on the substantive legal arguments, or they decline the case and let the lower court’s decision stand. Once they take the case, they simply have no choice but to apply existing law to those facts, whether or not they like the result. That’s not to say there aren’t exceptions to this – but the far bigger danger is often when courts do account for their political capital.

The whole debate is here.

One thing that does not get emphasized enough, though, in debates about judicial activism is that often times the idea of originalism is the truly “results-oriented” jurisprudence, while controversial or unpopular decisions decried as “activist” are nothing more than good faith applications of existing law. I say this because originalist critiques often insist that constitutional language should be “interpreted” to exclude laws and practices that existed when the constitutional provision was passed and were thus clearly not “intended” to be made unconstitutional by the provision. Such an “interpretation” is the very definition of activism, though, because it insists judges read into a constitutional provision limiting language that simply does not appear.

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