"What is most fundamentally wrong with these decisions is not that they produce bad policies, though they do, but that they represent the judicial usurpation of the authority vested by the Constitution in the people and their elected representatives," said George.
George calls this "anti-usurpation philosophy" and says it is "the whole point" of the Federalist Society. "If that is what Olson once represented, he can't claim to represent it now."
The concern about judicial activism isn't limited to conservatives. It's one reason some same-sex marriage advocates are cautious about a sweeping ruling imposing it nation-wide. Jonathan Rauch, the author of the book "Gay Marriage," and a proponent of the practice, said, "People forget that durable rights don’t come from courts, they come from consensus and strong support from society."
“We are winning the right to marriage in a bigger, deeper way by winning it in the court of public opinion," Rauch said.
The comparison with Roe v. Wade is illustrative. That decision polarized American society and sparked a strong counter-reaction. Critics were concerned both about its impact on unborn lives, and upon the health of the Constitution, when judges felt free to declare a fundamental right based on no supporting textual language.
Since then, the high court has been mired with re-drawing lines on everything from the health of a mother to the distance at which abortion clinics must keep protestors, as in a case before the court last week.
In a speech last May to students at the University of Chicago, Justice Ruth Bader Ginsburg said, "the court had given opponents of access to abortion a target to aim at relentlessly . My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”
At the same time, the high court sometimes steps in to force unanimity on a matter that seems to be coalescing into a national consensus. This is one view of Loving v. Virginia, in 1967 the high court voided Virginia's anti-miscegenation law, declaring a constitutional right for men and women of different races to marry.
Back to Sundance
At the Sundance reception, as Olson and Boies basked in the praise from the many same-sex marriage advocates, they each praised the other for the opportunity to work together on the case challenging Proposition 8.
“There isn’t a better lawyer in the country, and I don’t have a better friend,” Boies said of Olson, as he simultaneously slammed the other side of his case. “The other side doesn't have an argument, they have a circular bumper sticker that says, 'marriage is between a man and a woman.'”
And, he lauded the individuals, including the plaintiffs, for their courage in mustering the legal fight. Wrapping up his brief remarks in this city that played host to many of the events in the 2002 Salt Lake Winter Olympic games, Boies compared his and Olson’s role to that of torchbearers.
“We got the torch just as we were going into the stadium,” he said to applause, followed by: “The best thing we can say is, ‘at least we didn’t drop it.’”
Drew Clark is Senor Contributing Editor at the Deseret News.
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