Dahlia Lithwick argues in Slate that “there is nothing ‘activist’” about the New Jersey marriage decision”: “Memo to Karl Rove: Those who oppose this decision aren’t opposed to judicial activism. They are opposed to judges.” Here are her reasons for asserting that the decision is obviously non-activist: The court “could have gone much further”; it left “the really crucial decision” about whether same-sex unions should officially be called “marriages” to the legislature; and the court was construing New Jersey law, not other states’ laws or federal laws.
None of this makes any sense at all. The fact that a court could have been more activist does not establish that it wasn’t activist: If it did, then any decision that fell short of ordering the men of New Jersey to pair up and marry each other would have to be applauded for its restraint. Whether the official title for same-sex unions is really more crucial than the bundle of rights that such unions should have is a debatable proposition. More important, not allowing a legislature to decide what the crucial questions are and how to answer them is one of the features typically associated with activism. And can it really be the case that a state court is within its proper bounds–is steering clear of activism–so long as it concerns itself only with state laws? Who has ever held that state-court activism consists only of rewriting laws extra-territorially? If the New Jersey court, “interpreting” state law, dissolves the legislature and appoints its own, are we to refrain from calling it activist?