In the comments section, Marty writes:
Key: Congress and the President can prevent laws that are perfectly constitutional, yet unwise in their respective opinions, from coming into existence. The courts are allowed to strike down unconstitutional laws only.
Quite unlike Goodridge, which didn't strike any particular law, but ordered the legislature to redraft a timeless law into something more fitting of their taste. This is the top down approach.
Question: How is "legislative activism" and "executive activism" any more legitimate than "judicial activism"?
The bottom-up approach recognizes that the authority of government begins with the consent of "We the People". Legislative activism is the direct result of grassroots and commercial activism, and the Executive branch is acutely sensitive to those same trends, pushing its own agenda through the same legislative process. Has the Judicial branch always been able to press legislation in the same manner as the people, or the executive, with a final vote by elected representatives? Or is this something entirely new -- a judicial ultimatum, or a preemptive veto?
I'm not comfortable at all, with the top down approach. Questions like abortion and same-sex marriage are out of constitutional scope until "we the people" decide to put them there. Judicial activists are in a unique position because their Word is Law, without any legislative review, or executive veto, or consent of the governed. I don't think that's how it was supposed to work. Instead, like in your quote, the judiciary has the right to strike law, not rewrite, or demand new law. That is the domain of the people, right?
For example, was there any authority for what was done in Goodridge? Or should that court, having found current marriage laws unconstitutional, simply struck them, leaving it to the legislature to craft something that could be defended in that court? What was it that gave them the muscle to demand not only how the new law should be crafted, but when?
I'm going to do something really strange: cite Pat Buchanan to make my point, and also agree with Marty in part:
First, regarding whether "legislative" or "executive" activism is any more legitimate than judicial activism, Buchanan writes:
"We often hear the claim that our nation is a democracy," writes columnist Dr. Walter Williams. But, "That wasn't the vision of the founders. They saw democracy as another form of tyranny. … The founders intended, and laid out the ground rules for, our nation to be a republic. … The word democracy appears nowhere in the Declaration of Independence or the Constitution."
Indeed, the Constitution guarantees "to every State in this Union a republican form of government."
Asks Williams: "Does our pledge of allegiance to the flag say to 'the democracy for which it stands,' or does it say to 'the republic for which it stands'? Or do we sing 'The Battle Hymn of the Democracy' or 'The Battle Hymn of the Republic'?"
There is a critical difference between a republic and a democracy, Williams notes, citing our second president: "John Adams captured the essence of that difference when he said: 'You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.' Nothing in our Constitution suggests that government is a grantor of rights. Instead, government is a protector of rights."
The founders deeply distrusted democracy. Williams cites Adams again: "Remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide." Chief Justice John Marshall seconded Adams' motion: "Between a balanced republic and a democracy, the difference is like that between order and chaos."
"When the Constitution was framed," wrote historian Charles Beard, "no respectable person called himself or herself a democrat."
Democracy-worship suggests a childlike belief in the wisdom and goodness of "the people." But the people supported the guillotine in the French Revolution and Napoleon. The people were wild with joy as the British, French, and German boys marched off in August 1914 to the Great War that inflicted the mortal wound on Western civilization. The people supported Hitler and the Nuremburg Laws.
Our fathers no more trusted in the people always to do the right thing than they trusted in kings. In the republic they created, the House of Representatives, the people's house, was severely restricted in its powers by a Bill of Rights and checked by a Senate whose members were to be chosen by the states, by a president with veto power, and by a Supreme Court.
I consider the Courts to be one of those essential "checks" on the people. Individuals have certain rights -- liberty and equality rights -- that are antecedent to majority rule. All three branches of government ought to be committed to these individual rights.
More often than not, when the Court strikes down a law in the name of liberty, they simply nullify the law, and this is good. See Lawrence v. Texas. Often when government strikes down a law in the name of "equality" the same thing results.
However, I too have noticed that when "equality" is involved, a tendency for a court to *sometimes* command the other branches of government. And this, I'm not so enthusiastic about. Judicial Review is best when the Court is simply nullifying acts of other governments, not nullifying and then commanding. Because that looks like it's creeping up on "the people have too." (Although I'm not so sure that Goodridge is an example of "the people have to"; I still don't see how gay marriage imposes any direct burden on any of "the people"). But I'll give you a good example where Federal Courts did command other branches of government in the name of equality and ended up demanding -- "the people have to" -- and this turned out to be a real disaster: forced busing. And that, unlike gay marriage, did greatly directly burden "the people" who would have their kids bused to a shitty, often dangerous public school.