The boogeyman of judicial activism is back. Federal judges last month struck down California's gay marriage ban and Arizona's aggressive immigration law. Now these divisive social issues will leap like Mexican jumping beans from the courts to the November election. The rulings are already being digested in the political arena in the usual way. Republicans say the judges overstepped. Democrats, annoyed by the inconvenient pre-election timing, mouth a tepid defense and leave the harder work to the gay marriage and immigrant advocates.
In both the California and Arizona cases, Judge Vaughn Walker and Judge Susan Bolton did indeed make activist rulings, according to the most useful definition of that much battered term. That is, they struck down two state laws. Arizona's immigration law came from the legislature, and California's Proposition 8 came directly from the voters—in response to a California Supreme Court decision legalizing gay marriage, which makes Walker's decision to strike down the voter referendum reversing that ruling even more activist. But at the district court level—the first floor of the federal system—sometimes activist is what judges are called on to be. The framers laid the foundation for this by creating the judiciary as separate but equal. And after the Civil War, Congress practically demanded that judges assert themselves on behalf of unpopular minorities at least some of the time, by passing the equal rights protections in the 14th Amendment.
The outcome does not always favor Democrats. You can see this in a somewhat different form in the Supreme Court's recent decisions about the scope of the Second Amendment. For hundreds of years, the court declined to say that the right to bear arms in the Constitution was an individual right. Then, in 2008 and this year, the justices said just that in striking down hand-gun bans in the District of Columbia and the city of Chicago. Those decisions had more popular support than Walker's or Bolton's. But they were just as activist—actually, more so, because it's the Supreme Court, at the top of the federal court system, that makes law for the whole country and that has the power to choose its cases.
Did Walker's ruling veer into the risky activist territory of shaky judicial reasoning? Andrew Sullivan and Orin Kerr are duking it out over whether the appeals courts that are likely to hear the Proposition 8 case next—the U.S. Court of Appeals for the 9th Circuit and then the Supreme Court—will defer to Judge Walker's factual findings. Kerr says no, because some of Walker's fact-finding is really a series of judgment calls about difficult social predictions—will same-sex marriage in fact weaken traditional marriage? He also points out that an appeals court could find any old rational basis for upholding the law. Sullivan says, Wait a sec: The thrill of Walker's opinion is how thoroughly he shredded the old assumption that "preserving the traditional institution of marriage" is a legitimate state interest, as Justice Sandra Day O'Connor put it in Lawrence v. Texas, the 2003 decision striking down state sodomy laws. * "Tradition alone, however, cannot form a rational basis for a law," Walker wrote, citing a 1993 Supreme Court decision which said that the " 'ancient lineage' of a classification does not make it rational."
If you can't base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can't ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?
Judge Walker's analysis is authoritative because he had months to write his opinion and a full-blown trial to draw on. Judge Susan Bolton's decision to temporarily block the Arizona immigration law is necessarily sketchier: She acted at a preliminary stage in this suit. The Obama Justice Department asked Bolton to block Arizona from asking anyone whom the police arrest on suspicion of being an illegal immigrant to prove otherwise before the law went into effect. And the DoJ rooted its argument in the lawyerly problem of pre-emption rather than a clarion call to respect individual rights. So Bolton talks a lot about the "comprehensive and detailed framework" of federal immigration law, which she found Arizona to be meddling with. But she also noted the problem of "increasing the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up by this requirement"—meaning the requirement to prove their status. Arizona will get another chance to defend its law. And since the polls are running at 60 percent or higher in favor of the state's tough form of border control, Bolton's decision may be the one that proves out-of-sync with public opinion for longer, though the supporters of Arizona's tactics have the growing Latino population to contend with.
Support for same-sex marriage, meanwhile, could move past the halfway mark faster. Some polls show that it's already hit 50 percent in California, a marked shift since Proposition 8 passed just two years ago with 52 percent of the vote. The persuasive reality that's the underpinning for Walker's opinion may sink in deep enough to alter the political picture fundamentally. "The pattern we're seeing in the polls of growing support for same-sex marriage follows other equality issues rather than liberty issues," says Columbia law professor Nathaniel Persily, who studies the dynamic of popular opinion and court rulings. "It's closer to the pattern for interracial marriage than it is for, say, abortion," about which people's views have remained entrenched. "Within five years, there will be a majority in the U.S. supporting same-sex marriage. I have no doubt about that," Persily argues that rulings like Walker's won't change the inevitable trajectory—and, in fact, haven't done so, never mind all the claims about how the 2004 Massachusetts court decision legalizing gay marriage helped elect George W. Bush.
But there's a caveat here, Persily says: Opponents of same-sex marriage feel much more intensely than supporters do. They're more likely to act on their beliefs. "That's likely to be true for a long time. So we'll have a slow but largely apathetic growing majority in favor of same-sex marriage but intense opposition."
It's not the job of the courts solely to mirror public opinion. But increasingly over time, since the beginning of the 20th century, they have come into line with it, as Barry Friedman showed in his book Will of the People. Once same-sex marriage has majority support, it will harder to see court decisions supporting it as judicial activism. And it will be easier for the judges in the middle to move to the left. Ultimately, of course, that means Justice Anthony Kennedy. In the endless speculation about how Kennedy will treat the Proposition 8 case if it reaches him, timing may matter most. Gay rights groups held off challenging Proposition 8 because they didn't think Kennedy was ready to strike down a same-sex marriage ban. Ted Olson and David Boies charged ahead, anyway. What if they'd waited five years? In that time, more states will probably join the handful that have already made same-sex marriage legal. More older opponents of gay marriage will die and the polls will count more younger supporters. That's not the only way to influence Kennedy or any other justice. But it helps.