Judges

Thomas Sowell has a great piece today (reprinted here) about activist judges. Is the Montana Supreme Court and activist court? The argument could certainly be made.

For example, our Court made law requiring the Montana University system to pay benefits to its employees' same-sex partners within a month or two after Montana voters downed a same-sex marriage initiative by a nearly 2-1 margin.

Now Sowell suggests that it is left-wing or liberal judges who tend to activism. It seems, though, that a more accurate analysis might suggest that it is judges who are simply outside of the mainstream of contemporary thought who find themselves inclined to make law.

This is because the "mainstream" by definition is the prevailing set of mores and beliefs in our society. The prevailing social policies do not require activist courts for their implementation because they are imposed by the majority through the legislature. It is only those whose ideas have not been adopted by the majority who have to resort to the tyranny of black robes. Since much of the mainstream thought since President Reagan has been conservative or moderate, the activist courts have of late tended to the left.

In other words, if there were a public uprising in favor of gay marriage, gays would not depend on small numbers of people in black robes for a determination of their rights; such rights would be granted by the legislatures. The same can be said for abortion, prayer in schools, and a myriad of other issues. While the majority cannot operate in tyranny, they should demand their rights back.