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In a recent Wall Street Journal editorial, former Supreme Court Justice Sandra Day O'Connor questioned why there is such an "intensity of rage currently being leveled at the judiciary." Last week, the New Jersey Supreme Court gave her an answer.

On Wednesday, in an act of raw judicial power, the New Jersey Supreme Court discovered that the New Jersey Constitution, which was last written 60 years ago, requires that homosexual couples have a right to all the benefits of marriage. The court has given the legislature 180 days to rewrite laws governing marriage, but why bother? The laws have effectively been rewritten. As one delighted gay activist put it, when choosing between homosexual marriage and civil union, "[Legislators] get to decide between chocolate chip and double chocolate chip." In other words, for homosexual activists, it's a win no matter what the legislature decides to call the result, whether it is "civil union" or "marriage."

In its ruling, which overruled two lower courts and invalidated at least 28 New Jersey statutes, the Court found these new rights in specific language of the New Jersey State Constitution: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." Certainly the authors of the Constitution did not contemplate the notion of same sex-marriage when crafting this language.

So how on earth did the court find in this language a mandate that authorizes a court to require a legislature to change the law to give the rights of marriage to homosexuals? I'll tell you how. They made it up. That is what judicial activists do. They "find" rights where none exist in the U.S. Constitution (or state constitutions). All the legal talk about substantive due process and equal protection of the law is smoke and mirrors. Even the New Jersey Supreme Court acknowledged the dangerous temptations of judicial activism in their decision: "Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State." Of course, they went ahead and did just that.

When judges impose their personal politics from the bench, as the New Jersey Supreme Court has done, they are no longer "independent" arbiters of justice. They become unelected politicians in black robes, entitled to no more respect than elected politicians. Americans who care about the rule of law must nominate and confirm more conservatives to the bench -- men and women who will refuse the temptation to become policy makers.

Congressional Ethics in the Spotlight

As we approach the mid-term elections, which are less than two weeks away, congressional ethics continue to dominate the news.

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