They are inventing a law out of nothing. It is no different than when they legalized abortion. They aren't saying that this particular thing is illegal. They are saying that this MUST be done or it is illegal. There is a difference.
Courts have, for roughly 30 years, run rampant over areas they have no business getting involved in.
And, yes, I'm aware this will bring up the inevitable Bush v Gore bitch sessions, but I am in no mood to even argue that moot point any longer.
-=Mike
Normative v. Positive law.
Normative law basicaly says that people have certain natural rights simply by the fact that they're human and that they exist. This is where the penumbra of privacy rights - including the most infamous of them, the right to an abortion - comes from. Positive law takes a more literal, textual approach to the issues - basically, what does the Constitution say? The Constitution never mentions privacy, let alone abortion, so is this really a right?
Neither normative nor positive is entirely wrong or right.
But yes, judicial activism is RAMPANT in our society today. From both the right and the left.