Order in the court? Hardly

This week's splintered Supreme Court opinions on gay marriage showed justices willing to bow to the whims of bigoted public opinion and overstep proper judicial review to legislate from the bench.

The opinions also were, in parts, incoherent, paranoid and Orwellian. Those aren't my words. That's what the justices said about each other in the six opinions issued Wednesday that resulted in the state's gay-marriage ban being upheld.

Justices on the court make much, particularly while up for re-election, about the importance of an independent judiciary, particularly at the highest court. They guard carefully the view that while they are elected and take campaign contributions to run their campaigns, they are no ordinary politicians.

They say they don't sway to public opinion. And this year in particular, the incumbents are defending themselves against the conservative charge of being part of an activist court that legislates from the bench.

If the attacks had come from political opponents, I have no doubt the three justices up for re-election would object vehemently and defend their honor and that of the institution.

Supreme Court justices aren't supposed to be influenced by the political nature of a case. But the pile of opinions released in the Defense of Marriage Act (DOMA) case shows justices accuse each other of just that.

Justice Barbara Madsen, who wrote the lead opinion, said that quite clearly when she wrote, "Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court's limited role when deciding constitutional challenges."

Madsen, in an opinion also signed by Chief Justice Gerry Alexander and Associate Chief Justice Charles Johnson, said the dissent ignored proper judicial review and "instead decides for itself what the public policy of this state should be."

Justice Jim Johnson, in a concurrence signed also by Justice Richard Sanders, said one claim in Madsen's opinion was not "coherent, at least outside the context of a George Orwell novel."

They also said it was "paranoid" for Justice Mary Fairhurst to say in her dissent that the marriage ban was motivated by "animus."

Fairhurst said the Madsen opinion relied on "historical ignorance and discrimination." She wrote that the five justices who signed opinions by Madsen and Jim Johnson "are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination."

If judges worry that the public doesn't understand how they operate, and that opponents are trying to politicize the court, they might want to avoid words that would look at home on a piece of negative campaign mail.

Justice Susan Owens told me that gay marriage is a tough issue that splits society, adding, "I don't know why our court should be any different."

Because it's supposed to be?

David Postman is The Seattle Times' chief political reporter. His column appears Fridays. Reach him at 360-236-8267 or at dpostman@seattletimes.com