The 9th U.S. Circuit Court of Appeals, the federal appellate court with a liberal reputation that stretches from sea to shining sea, took a markedly conservative path today in the closely- followed Proposition 8 case. Instead of resolving a thorny "standing" issue itself, and thus launching the appeal on its way to the United States Supreme Court, a three-judge panel instead first asked the Supreme Court of California for guidance on whether the private litigants who appealed the August 2010 ruling striking down the same-sex marriage ban had the legal right to do so.
The 9th Circuit just acted, to be sure, but not even the most conservative legal scholar can dare call this an instance of "judicial activism." Instead, the tactical punt from one San Francisco court to another is consistent with a centuries-old judicial concept: never decide what you don't really have to decide, especially when you have a plausible excuse for not deciding it. Here, the 9th Circuit blamed the not-completely-unexpected detour on the lack of "controlling state precedent" on the question of what to do with an appeal where, as here, both the sitting governor (the since-departed Arnold Schwarzenegger) and the sitting attorney general (the since made-governor Jerry Brown) refused to carry it out.