Role of the Judiciary
The underlying dynamic here illustrates why it’s always been a mistake to try to draw a contrast between gay rights groups’ efforts to secure equality through the courts and to secure equality through the political process. The fact of the matter is that the political process simply isn’t very friendly to minority rights claims even when the claims themselves are reasonably popular. Repealing Don’t Ask Don’t Tell has become a majoritarian position, but the Obama administration would still prefer to avoid the headaches involved in working to repeal it. At the same time, if a court case were to order the administration to end this policy, it’s abundantly clear that there would be no critical mass of political support for trying to put it back in place.
Either way, the basic fact of the matter is that the political system is biased toward doing nothing. The mere fact that a majority is prepared to support claims of equality doesn’t mean that political leaders want to expend time and energy making our clunky legislative mechanics produce laws reflecting that fact. Under the circumstances, people with just claims to make on their own behalf are wise to pursue those claims through all available avenues including the judiciary.
(emphasis mine)
Ramesh Ponnuru, linked to by Yglesias, on the Ricci decision:
Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by “judicial activism.”
(emphasis mine)
So…wait, what?
