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Who You Calling Activist?California's gay-marriage decision reflects the difference between judicial activism and, um, judging.

By Dahlia LithwickPosted Thursday, May 15, 2008, at 7:17 PM ET

Read Slate's legal bloggers' reactions to the California same-sex marriage ruling on Convictions. Also in Slate, Kenji Yoshino calls the decision "revolutionary," Emily Bazelon explains why voters might not freak out, and William Saletan claims our bans on polygamy and incest, as well as homosexuality, are losing ground.

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All of that plays right into John McCain's latest cut-and-paste rant about how "the moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it." If Sen. McCain wants to take a moment to explain the difference between "making" and "applying" the law, I am all ears.

The opinion itself is teeming with the court's own anxiety over the public perception of judicial activism. The majority begins with a plea to recognize that the judges in the majority are not activists: "Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions."

The word activist itself appears just once today—in a concurrence and dissent by Justice Marvin Baxter, who doesn't call his colleagues activists but worries about their grandchildren: "Who can say that in ten, fifteen, or twenty years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?"

Not to be outdone as the winner of the "I am not an activist" Olympics, Justice Carol Corrigan opens her dissent with the announcement that she is so not an activist that even though she personally believes that Californians "should allow our gay and lesbian neighbors to call their unions marriages," the court nevertheless overstepped its bounds in striking down the state marriage laws. Writes Corrigan, "[T]he principle of judicial restraint is a covenant between judges and the people from whom their power derives. … [I]f there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box."

Justice Corrigan's model of judicial restraint is not quite constitutional originalism or even John Roberts-style minimalism. Like Baxter, she espouses some kind of shabby-chic jurisprudence in which state statutes endure a constitutional distressing process that allows them to become more and more constitutional over time. Standards and values can change, she allows, but only when the people have lived with those changes for some set period of time. It's not so much that the majority is "activist," therefore. Their real problem is that they are somehow "tacky."

My own vote today is with the governor, who's smart enough to realize both that activism is an empty label, and that when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional. Moreover, he seems to understand the difference between judicial activism and judicial action, and the fact that the latter is not something for which a court needs to apologize.