Justice Alito’s footnote sums up everything that is wrong with our judicial system

I haven’t had the heart or the stomach to read the Supreme Court decisions that came out today.  (It’s not about content.  It’s about the fact that, with rare exceptions, I find most Supreme Court decisions too horribly written and turgid to read.)  I therefore didn’t discover this gem from Justice Alito in the DOMA case  Instead, I’m passing it on to you from Paul Mirengoff at PowerLine, including the emphasis Mirengoff added:

The degree to which this question [the traditional view of marriage vs. the consent-based view] is intractable to typical judicial processes of decisionmaking was highlighted by the trial in Hollingsworth v. Perry. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 958 (ND Cal. 2010) (finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55)(“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”).

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” [citations omitted] Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.  (Emphasis added)

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Comments

  1. Oldflyer says

    Irony abounds.  Judicial precedent is sacrosanct, except when it is not; e.g. Plessy v Ferguson.
    A couple of cliches come into mind with the current situation. 
    The first is the “law of unintended consequences”.   Some could say that this law is always in play whenever the government tries to manipulate human nature, or shape society.  In this case it was decided at one point that traditional families were beneficial for the future of the state.  Therefore, tax laws were shaped to encourage the establishment of stable families, based on traditional marriages.  Now, those same laws are the lever used to undermine traditional families in the name of fairness.  Unforeseen and unintended for sure.
    The second cliche relates to the “camel getting its nose under the edge of the tent”.  The camel,  in the form of government, was allowed to get involved in matters that were well beyond its charter; e.g. reward or sanction bestowed on certain classes of citizens for various reasons deemed appropriate by incumbents in government..  Over time, government has been allowed to worm its way deeper and deeper into nearly every human interaction.  Now, the camel (government) is inside the tent and trampling all over liberty and privacy.  We are helpless to evict the beast.  Moreover,  we seem to have forgotten what the real functions of government truly are, and what the limits of its mandate rightfully should be.

  2. jj says

    Don’t read the decisions, read the dissents.  All too often Scalia writes them, which is fine: he’s both literate and entertaining.  Mirengoff is right: the legal “profession” – if that’s what it may still be permitted to call itself – has long since become a parody.  

  3. says

    I’m not sure how they will profit off same sex marriage or how they will keep gays on the sexual slave plantation… but they will teach me it soon enough. I merely have to wait for the evil to do as evil does.
     
     

  4. Danny Lemieux says

    The thing is, marriage isn’t about “two people” – it’s fundamentally about kids and the creation of an optimum environment in which to prepare the next generation.
    This ruling is just one more step into rendering marriage and child raising irrelevant and I suspect that we will suffer great consequences for it. 

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