[Happy Monkey]

But the end result is that judges, usually at the Appellate level, are making policy. As part of their normal, official, and non-"activist" duties. They tell the legislature "Thou shalt not make such a law", and they tell the executive "Thou shalt not enforce such a law", or "Thou art enforcing that law incorrectly". Ideally, they wouldn't make policy, but it is their job to do so because things are not ideal.