Before you make any snap judgments on the New Jersey gay marriage decision, please read this post from actual, for-real constitutional lawyer Glenn Greenwald. Before you make any judgment on any court case, please read said post from actual, for-real constitutional lawyer Glenn Greenwald. Before you listen to any talking head or pundit say anything about any case ever, please read said post from actual, for-real constitutional lawyer Glenn Greenwald.
It is probably the best discussion I've ever read about the concept of "judicial activism," what it actually means, and how one does and does not go about deciding if a particular case was decided with sufficient restraint. I can't summarize his point, or highlight the better parts because you just have to read it all. It's not too long, and I really believe the country would be a better place if everyone had to read it.
A side point that Greenwald makes that I want to highlight is the very counterproductive role of the pundit class in all this. We have a journalistic system in America that, for various reasons, is broken, and perhaps its most completely broken part is its punditry. Many of these guys, especially the ones who have backgrounds mainly in "think tanks," are not trotted out on the basis of their expertise, but merely on the fact that they're good at talking in front of the cameras and will take a reliably partisan view of the issue. Think tanks, in fact, along with the demonization of the media via the "liberal media" meme, have been a main avenue of media infiltration by what we can only call "professional conservatives." These are guys who don't actually have much expertise in anything, who went straight from their College Republicans chapter to some rightwing think tank that gives them experty-sounding cred straight to your TV screen (sometimes, but not often, working briefly in journalism along the way), but who are brought on solely to represent the conservative viewpoint. Their job is not to use their expertise to provide genuine perspective (because, again, they have no expertise), but solely to push the debate rightward. They are typically brought in to "balance" an actual expert on subject X, and unlike the expert who may or may not (but let's face it, usually does) end up taking a liberal tack on the subject, they are reliably partisan and always run to the right of the other pundit. Among our professional conservatives are such personalities as William Kristol, Jonah Goldberg, Kathryn Lopez, John Hinderaker, David Brooks, Bill O'Reilly, and all the bloggers and talk radio wankers that make up the rightwing spin machine.
Am I not being sufficiently bipartisan in my smearing? Well, you tell me: how many "professional liberals" can you name, especially ones that actually get interviewed regularly on CNN and FOX? How many liberal "think tanks" do you know of?
These are the guys who get on TV and rail about judical activism, the guys Greenwald takes to task. Anytime you see these wankers, it is extremely important to remember: these people don't know shit. Nothing at all. They just read what you read in the newspapers, thought up a talking point to convince everyone that sounds good when you don't have time to actually think about it, and then got on TV and starting spewing their bullshit for the camera. It's all just a game and the refs are routing for the wingers.