Sen. Jeff Sessions (R-AL) is upset that what he calls an "activist judiciary" is striking down states' same-sex marriage bans — particularly in his home state of Alabama, where a federal court recently deemed the state's marriage ban unconstitutional.
"The attorney general of the state of Alabama has appealed, which I support. And while a number of courts have held the way [the] Alabama court has, others have not, and to me this line of cases … represents an activist judiciary," Sessions told CQ Roll Call on Monday. "No Congress has ever passed a law or a constitutional amendment that would ever have been thought to have this result." He added, "So, I think the proper role of the federal courts is to follow the law as it is, not as they wish it, might wish it to be."
Sessions is voicing a talking point commonly used by critics after a court makes a ruling they disagree with. Instead of simply stating their disagreement with a judge's interpretation of the law, critics often go further — suggesting judges are acting like activists by going beyond their judicial duties and striking down or upholding laws based on policy views, not legal rationales.
In this case, Sessions is actually criticizing a judge he helped appoint in 2002: US District Court Judge Callie Granade, whom Sessions endearingly called "Ginny" during her nomination hearing, was the one who struck down Alabama's same-sex marriage ban on January 23, nearly 13 years after she took the bench with a nomination from President George W. Bush that Sessions heartily supported.
The fact that a Republican-appointed judge — whom Sessions supported, no less — struck down a same-sex marriage ban should demonstrate that far more than judicial activism is going on here. More likely, it seems like judges across the country are concluding that there's a genuine constitutional violation at the heart of these same-sex marriage bans.
The problem is Sessions, like others who use this talking point, seems to conflate the judicial branch's actual purpose with judicial activism. Courts that are striking down same-sex marriage bans aren't made up of activist judges advocating for marriage equality; they're judges doing their jobs by protecting people's right to marry.
Courts aren't meant to only enforce laws by locking up criminals and fining wrongdoers. As we all learn in school, the judicial branch was established in the US Constitution with the explicit purpose of keeping a check on the legislative and executive branches of government. When laws are passed that violate people's constitutional rights, it's a court's duty to step in and strike down those statutes.
That's exactly what's happening in the legal battles over same-sex marriage across the nation. In these cases, the legal question is whether states are violating people's equal protection and due process rights under the 14th Amendment of the US Constitution by treating same-sex couples differently than opposite-sex couples when it comes to marriage. Most federal courts that have ruled on the matter, including Republican-appointed judges besides Granade, agree this kind of discrimination is unconstitutional.
Judges, particularly at the higher levels of government, don't reach these types of decisions solely based on their personal views of policy issues. Every major case is backed by up to hundreds of pages explaining the legal rationale and precedent behind a ruling in excruciating detail. For example, the opinions for United States v. Windsor, the 2013 case that led the US Supreme Court to strike down the federal ban on same-sex marriages, spanned 77 pages.
This is why US Supreme Court Justice Sonia Sotomayor rejected the concept of judicial activism altogether. "I think most judges have a definition of judicial activism: it's a ruling you don't like," she said. She urged people to read judges' written decisions, adding, "What you will find out is that both sides always base it on a legal analysis. We don't come to our conclusions willy-nilly or arbitrarily."
Sessions may disagree with the courts' interpretation of the 14th Amendment. Maybe the Supreme Court will ultimately decide his interpretation is correct. But that's a disagreement — not a sign that some judges, including those whom he supported, are going beyond their acceptable duties.