Janet & Teh Evil Judges

The ruling by the Supreme Court of California in favour of gay marriage has resulted in a predictable whinge from Janet Albrechtsen about a “a tyranny of judges”.

The Supreme Court of California, in a 4-3 ruling last Thursday, legislated in favour of gay marriage. Never mind that 61% of Californian voters said no to gay marriage in a state wide plebiscite on the matter in 2000. The judges apparently know better what the people should want.

Argument ad populum. “The ruling is wrong because most Californians disagree”. Piss weak.

It’s funny how Judges are only activists when they rule against the wishes of the conservatives. Ed Brayton summed this up nicely:

It’s outrageous when courts overturn the “clear will of the people,” especially when that will is expressed directly through popular referendum. That’s absolutely wrong. Or is it? Let’s hit the rewind button back to 2006 when the case was Gonzales v Oregon, where the people of Oregon passed a law authorizing voluntary assisted suicide for the terminally ill.

In fact they did it twice, once in 1994 and once in 1997, before the law took effect. Religious right groups immediately filed suit to have those evil activist courts overturn the law and the Supreme Court upheld the law in 2006 by a 6-3 vote. Guess what Tony Perkins and the Family Research Council thought about the “clear will of the people” in that case? They filed a brief urging the Supreme Court to strike down the will of the people and screamed bloody murder when the ruling went the other way.

Game. Set. Match.

Maybe there’s anything from Janet with a little more substance further on…?

You’d think that America’s senior appellate judges would learn from Roe v Wade. When the Supreme Court of the United States legislated in favour of abortion, the Court did not settle the issue of abortion but inflamed it. For decades now, while most Americans support the right of women to have an abortion, many Americans believe the matter should have been decided by legislatures.

Whether women should have been granted the right to terminate a pregnancy is neither here nor there. What we need really need to be careful of is people getting all wound up about it.

[I]t is not homophobic to criticise an activist judiciary for legislating gay marriage. Supreme Court Justice Antonin Scalia summed it up in his dissent in Lawrence v Texas, a Supreme Court decision which legalized sodomy by overturning a duly enacted law by the people of Texas. “Let me clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its views of such matters are best…But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.

Those filthy sodomites can do what they please in the privacy of their own bedrooms when the majority of this states God-fearing citizens say they can!

[The Judges’] good intentions do not get them off the hook for undermining democracy. Indeed, as CS Lewis said, of all tyrannies, a tyranny exercised “for the good of its victims” may be the most oppressive.”

I’ll take ridiculous hyperbole for $1000, Alex.

Janet’s getting thumped in the comments section at her blog, and she deserves it for writing such a poorly argued piece of drivel. There are a few supporters in there though, who think the judiciary should be abolished and started afresh with elected judges who serve 3 year terms…


~ by Sammy Jankis on May 19, 2008.

2 Responses to “Janet & Teh Evil Judges”

  1. Janet needs to go back to uni and do a basic course in political science. Like many who play the “will of the majority” card when it suits them, she demonstrates a profound (and perhaps wilful) misunderstanding of the difference between “pure” democracy and liberal democracy. She also conveniently forgets that the US and Australia are liberal democracies, and liberal democratic systems of government are generally comprised of executive, legislative and judicial branches, each of which is supposed to act as a check on the power of the other two. “Judicial activism” is Orwellian code for “I don’t agree with the judges’ decision.”

  2. The thing is, I think she knows the “will of the majority” line is poor argument and can see the difference between absolute democracy and liberal democracy. However, the audience she appeals to doesn’t, and she makes the most of that fact.

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