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Friday, June 28, 2013

On judicial decisions and political philosophy

In my earlier blog post about the two same sex marriage decisions (see here), I excoriated Justice Scalia's dissent in the Windsor case.  I wanted to explain my reaction a bit more than I did there.

Basically put, the job of a judge is to expound on the meaning of the law.  While personal political philosophies are going to have some influence on any decision given that one's political philosophy shapes one's worldview, this philosophy should not completely overwhelm an objective analysis of the case.  In a similar way, a historian should never allow his/her personal preferences to color the way that he/she looks at history (or at least as little as possible).  For example, while I disagree with what Justice Alito said, his dissent falls well within the bounds of judicial interpretation.  Justice Scalia's, on the other hand, reads like a pamphlet written by a political partisan.

Lest anyone think that this is solely influenced by my own opinion on this case, I also disagree (as I mentioned in the same blog post) with the dissents of Justices Brennan and Marshall in Gregg v. Georgia and with the reasoning by Chief Justice Earl Warren in Brown v. Board of Education.  While I do agree with the results of Chief Justice Warren's decision, his reasoning was based on sociology and not on legal reasoning.  Like Justice Scalia in Windsor, Chief Justice Warren allowed his personal beliefs to dictate his decision rather than allowing the law to do so.

Part of the problem here is that some people want the world to change too quickly rather than allowing change to come in a more gradual manner.  Change is never easy for anyone to accept, and if it is forced onto people, it becomes even harder to accept, particularly if the change is a massive one.  Change is not always good (no matter what some people say or seem to think) and by forcing change, it causes people not ready for the change to react badly.  If something is right, it will come to be accepted by people if it comes properly.