Judges Raise Conservative Hackles but Scholars Say Court Is Fulfilling Its Constitutional Duty

Article excerpt

A spate of recent controversial court decisions is raising the ire of conservatives who charge that judicial activists are usurping the popular will.

But scholars and civil-rights lawyers say the courts are playing their long-standing, and well-precedented, role of guardian of constitutionally-protected rights.

The two most recent cases in point: The decision last week by a federal judge in San Francisco temporarily halting implementation of Proposition 209, a California ballot measure passed in November that would potentially bar programs that give preference to women and minorities. The other was Tuesday's ruling by a circuit court judge in Hawaii that a state ban on same-sex marriages was unconstitutional. "The judiciary is not respecting the balance of powers and instead is becoming the top of the pyramid," says Kristi Hamrick, of the conservative Family Research Council. Counters Michael Laurence, a civil-rights attorney in San Francisco: "Any federal judge who upholds his or her oath to the federal Constitution is subject to this sort of attack. That's why we have the Constitution - to protect the minority against the tyranny of the majority." Conservatives point to a number of cases in recent years that they believe constitute a trend of the courts thwarting the increasingly conservative mood in public policy. In another prominent California case, a federal judge blocked implementation of a proposition barring benefits to illegal immigrants after its passage in 1994. And a Supreme Court decision earlier this year invalidated a Colorado state constitutional amendment preventing local and state governments from enacting anti-discrimination laws for homosexuals. …