I understand where you are coming from on this, but I think you should realize some court battles are inevitable. After all, the Lawrence case was not some "test case" cooked up by a public interest law office that had the choice not to file. It was a criminal prosecution brought by the State of Texas. I think it is asking too much of people that they should go to jail because arguably long term it is better for the "movement" that change happen legislatively instead of judicially. There is a role for the courts in the system and the Lawrence decision is an example of picking a good time to fight in my opinion.

In the case of gay rights, as with racial desegregation, there may be an initial backlash, but long term, as people live and work next to openly gay people and realize they are not monsters, there will be progress.

Judicial activism is in the eye of the beholder, no? There has certainly been no shortage of attacks on "the left's" attempt to destroy the Boy Scouts, and courts don't escape the ire of people who raise such complaints, even if they are less "activist."

No, if by judicial activism we mean a court second-guessing a democratically passed law, there is no "eye of the beholder." Courts in Britain for example have traditionally not exercised judicial review-- laws passed by the Parliament are never struck down on constitutional grounds (although this is changing due to the adoption of the European Convention on Rights).

Without question, there is conservative and liberal judicial activism, and most people who like one moan about the other, but there is a core meaning of judicial restraint that means that overturning laws are not the job of the courts.

I agree with your description. I just think that the relationship between (what we stipulate as) judicial activism and public opinion of the courts is likely to be more attenuated than one might suspect, or than the post implies. The broader question is whether or not opinion leaders can portray a decision as activist, and I would suggest that the ability to make that tag stick depends more on which groups win or lose than on how the courts go about their business. But that's an empirical claim that is subject to revision if the facts show otherwise. . .

I'm going to hold off a bit before I accept any pronouncements of a "backlash". First, I don't think too many Americans even heard about the Lawrence decision in the first place. Secondly, I think this graf in the USAT is misleading:

Asked whether same-sex relations between consenting adults should be legal, 48% said yes; 46% said no. Before this month, support hadn't been that low since 1996.

You have to look at the poll #'s themselves over time to see why this is a poor construction. First, polls in `99, `00 and `01 had "same-sex should be legal" rates of 50, 54 and 52 percent respectively. This is all within the margin of error (+/- 3%) of the current poll, which has a 48% on this question.

Secondly, there were no polls conducted between `96 and `99 - a rather large gap, if you ask me, considering that the poll has been conducted annually or more frequently from `99 on.

And lastly, geez, 46% of people think that "homosexual relations between consenting adults" should be ILLEGAL?. I mean, this is so far out of whack with real life. This strikes me as one of those silly poll topics - sort of like how, when you poll `em, people say litterbugs should be thrown in jail.

I would disagree with your characterization of the Lawrence decision as "activist." True, it reversed Bowers v. Hardwick, a relatively recent decision, but Bowers itself was something of an aberration in the Court's substantive due process jurisprudence. The general gist of the Court's decisions in this area is that the Due Process clause protects the right of people to make decisions about sex and reproduction without government interference. Given this context, it was very difficult to explain Bowers as reflecting anything more than naked animosity toward gays by the majority--or, in other words, judicial activism. Lawrence, on the other hand, can be seen as a fundamentally conservative decision that is merely seeking to bring the Court's stance on sexual orientation in line with the rest of its substantive due process jurisprudence.

Sure, you can argue that the entire line of substantive due process cases constitutes judicial activism and should be abandoned by the court. But this puts you to the right of even Justice Scalia, who has acknowledged the validity of at least some of the rights recognized by substantive due process.

Lawrence was not activist because it reversed Bowers. Yes, "Substantive due process" is itself always judicial activism, whether protecting economic rights for business or individual rights, since it is overriding democratically-agreed to laws by the elected branches.

Scalia is a very heavy judicial activist on behalf of business and other conservative interests. Of the conservative Justices, Rehnquist is actually the least activist, although still very activist. But the rightwing judges have been far more activist than the liberal justices.

And being for judicial restraint has in most of American history been a progressive and left position. Only with the Warren Court did progressives adopt a favorable view towards giving unelected judges power to overturn democratically approved legislation.

But if democratically approved legislation violates the Constitution, the "supreme law of the land", why is it a bad thing for the Supreme Court to overturn it? Is this not part of ye ole checks-n-balances?

Mind you, I'm a cartoonist, not a lawyer, so certain legal terms and history are beyond my specialization. Yet the Lawrence case—like Brown and Roe—were cases brought before the SC, who had the discretion to hear or to refuse the case; regardless of Bowers, if they saw viable case posing a potential violation of the Constitution, is not the SC duty-bound to hear it?

A check and balance is-- two democratically elected houses having to agree on legislation, a democratically elected President being able to veto legislation, Congress being able to override the veto, and voters being able to throw any of the elected officials out of office if they don't like what they pass. That is all democratic check and balance.

Then you have judicial review. A narrow five-four majority of Justices strikes down a law as unconstitutional. That's it. No appeal. No override by legislature. No ability of voters to recall judges.

Essentially there are two ways to change the Constitution. EITHER two-thirds of the Congress and three-quarters of the state legislatures agree to do so-- OR five 70-year old judges write a court decision. Given how hard it is to do the first version, essentially this gives the Supreme Court almost immunity to change the Constitution as it likes with no democratic check-- other than waiting for judges to die off thirty years later.

The Lawrence decision was issued with relatively broad consensus from a center-right court, and hence cannot be classified as an example of "judicial activism" in the ideological sense. If conservatives are upset, they only have themselves to reckon with, since two of their own joined in the decision.

If O'Connor reversed herself (Kennedy joined the Court a year or so after the Bowers v. Hardwick decision that the Lawrence one overturned), then it is clearly an indication of evolving social attitudes toward homosexuality in the mainstream. O'Connor never would have signed on to a decision that wasn't cautious and limited in scope.

Conservatives opposed to gay marriage are blowing this decision way out of proportion. On other hand, Lawrence does have important legal implications for the equality of gays and lesbians, but making the leap to the marriage question is just that: a leap. It's all electoral pandering to the Religious Right and frankly quite disgusting when other people's civil rights are at stake.

By your definition, Nathan, most of the Supreme Court's decisions throughout its history could be deemed "activist." Your definition simply does not fit the real world.

I think, too, that you have underestimated the impact of sodomy laws. These laws have been used as ammunition against allowing gay men and women to adopt, to foster children, to hold public office, they have been used as weapons in divorce and child custody proceedings, and so on.

When someone is a de facto criminal, it has an impact, sometimes a profound impact.

The argument that the Supreme Court should have shown restraint and decided Lawrence differently ignores the reality of what sodomy laws are and what they've been shown to do. Nathan Newman claims that the decision "delivered little of substance on its own, given the general lack of enforcement of such sodomy laws." However, as Joseph Landau accurately detailed in The New Republic online recently ('Ripple Effect'), states that had sodomy laws (even ones that apply to both same and opposite-sex sodomy), used them to target only gays and lesbians. Just how principled is the position to avoid judicial 'activism' when it allows a politically unpopular minority to be denied housing, employment, and child custody? States enforced sodomy laws as they wanted to, targeting only gays and lesbians who were ipso facto criminals in states where these laws are allowed to exist. Clearly, the legal implications of Lawrence are considerable. Far from calling for restraint, I think it's time we recognize that no amount of supposed principled judicial interpretation is worth destroying the lives of gays and lesbian Americans.

Justin and others,

The issue is not "principled judicial decisions"-- hell, I don't care about that because I don't think there is any such thing. This is about power, and whether you think judges having it is a good thing.

* It was the Supreme Court that said private organizations like the Boy Scouts can discriminate against gays EVEN when laws say they can't-- the Dale decision.

* It's the Supreme Court that said that the disabled can be discrimated at by state government EVEN when federal law says they can't.

* It's the Supreme Court that said women can be raped, yet can't sue in federal court EVEN when the federal law (Violence Against Women Act) says they could.

Note-- when the culture was against gay rights, the judges didn't deliver a thing (Bowers); only now when the democratic culture could pass a similar law do you see the courts step in-- even as with Dale they are striking down more progressive laws such as hiring discrimination regulations.

The argument here is not to respect "good judicial process" but that Lawrence will be bad for gay rights. It will mean that future laws won't be passed as soon.

That may be an empirically wrong prediction, but don't mischaracterize what I'm saying. This is not about sacrificing gay rights to principle-- it's about pragmatically questioning whether such court decisions accomplish what their advocates think they are.

But so far you have not demonstrated that this really is judicial activism. Saying it does not make it so. Was Marbury v. Madison decided wrongly?

As for your predictions about Lawrence being bad for gay rights, I disagree there, as well. You're talking about a short-term bounce that may or not be longlasting and may or not be meaningful. This is simply insufficient data on which to base such a prediction.

Yes, in some sense I think Marbury v. Madison had serious problems (although ironically it was an act of judicial restraint since it deferred to the Congress). Chief Justice Marshall was a rightwinger who used the Constitution as a weapon to defend property interests against rising democratic demands for equity. He allowed corrupt land speculators to rip off the public, upheld slave rights and the expropriation of Indians, and across the board sided with creditors against debtors.

So no, I have little admiration for John Marshall's work.

"No, if by judicial activism we mean a court second-guessing a democratically passed law, there is no "eye of the beholder." Courts in Britain for example have traditionally not exercised judicial review-- laws passed by the Parliament are never struck down on constitutional grounds"

It may be the case that courts in Britain have traditionally not exercised judicial review, but the fact is that the Founders (who wrote the US Constitution) apparently believed that judicial review was within the scope of "judicial power." This is clear from the first few Federalist Papers dealing with the "judicial branch," in which the authors discussed the power of the court of last appeal in Britain (which was apparently a committee of the House of Lords) to strike down legislation that had been passed by Parliament). In the Federalist Papers, the authors were arguing for a judiciary independent of the legislative branch, which obviously would not be provided in the British scheme.

Apparently, the idea of judicial review did not begin with Marbury

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