Of all the lies and half-truths that spring from the mouths of politicians, the pernicious and pervasive use of the phrase "activist judges" to demean well-intentioned jurists surely is one of the worst. Even the late, great Supreme Court Chief Justice William Rehnquist hated the phrase.
Everytime a judge makes a decision, any decision whether you like it or not, that judge is "acting." Even when the Supreme Court decides not to review a case it is "acting." To judge-- to choose between competing arguments-- is to act. Every judge every day, therefore, is an "activist judge" in the honest meaning of the word and, therefore, no judges are the sort of creepy "activist judges" that President Bush and his cronies in Congress want you to be afraid of. Anytime you hear someone call a judge an "activist judge" all it means is that the person doing the calling didn't like the decision the judge just rendered. Nothing more. Nothing less.
So when the President says, as he did today, that "activist courts have left our country with no other choice" than amending the Constitution to ban gay marriage, he is really saying two things that aren't exactly true. First, there are plenty of other options aside from a federal constitutional amendment that Americans may choose from to protect marriage-- and, indeed, Americans all over the country are choosing them, in the form of ballot initiatives and state statutes that ban same-sex marriage. And don't forget the Defense of Marriage Act, the federal statute which has been on the books now for about a decade. That, too, is a choice Americans made long ago in on the debate over same-sex marriage.
And, second, the President's bogeyman, "activist courts" (that's "activist judges" to you and me), haven't done anything but interpret a state law here and there in a way that permits same-sex couples to be considered married under the law. If the argument for that position were completely untenable, or even just not likely to be embrace in the future by bright judges, there would be no need for the added layer of protection that conservatives seek to place via the amendment. You want to go after activists? Go after the ones trying to change the constitution. Now, that's an act you don't see performed every day.
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